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Mentus v. Town of Irvington

Decided: May 29, 1963.

CASMER MENTUS, PLAINTIFF,
v.
TOWN OF IRVINGTON, NEW JERSEY, ET ALS, DEFENDANTS



Whipple, J.s.c.

Whipple

This matter comes before this court on a complaint predicated on the Declaratory Judgment Act and is blended with the issue by way of complaint in lieu of prerogative writs as to whether or not the present alleged members of the Zoning Board of Adjustment of the Town of Irvington have been validly appointed by the Municipal Council of Irvington. The plaintiff is a member of that Council. The defendants are the Town of Irvington, the mayor, the present appointees to the zoning board of adjustment and the members of the municipal council. The mayor and the president of the council will hereinafter be referred to as the "mayor's group."

The following facts are not in dispute. In May 1962 the Town of Irvington formally adopted the Mayor-Council Plan D form of government, effective July 1, 1962, under the Optional Municipal Charter Law, L. 1950, c. 210, commonly known as the Faulkner Act and now indicated as N.J.S.A. 40:69A-1 et seq.

In July 1962 the Town of Irvington adopted ordinance MC-2001 (known as the Administrative Code) which in article XI, section 11.5, contained the following provision:

"The Zoning Board of Adjustment, as heretofore established and empowered pursuant to law (R.S. 40:55-36 et seq.) is continued and the members shall be appointed by the Mayor with advice and consent of the Council."

On September 25, 1962 the mayor submitted to the council the names of five appointees to the zoning board of adjustment. A dispute developed between some members of the council and the mayor as to whether or not the mayor had the power to suggest appointments to the zoning board of adjustment subject to confirmation by the council. On October 23, 1962 the council refused to consent to the mayor's appointees, explaining that the rejection was not based upon the qualifications of the appointees but rather on the question of who had the power of appointment.

On December 4, 1962, over the mayor's veto, the council approved an amendment to the Administrative Code which eliminated only that portion of section 11.5 which provided that members of the zoning board of adjustment shall be appointed by the mayor, with the advice and consent of the council. As the ordinance now stands it provides:

"The Zoning Board of Adjustment, as heretofore established and empowered, pursuant to law (R.S. 40:55-36 et seq.) is continued"

On December 11, 1962 the council directly, and without consideration or consultation with the mayor, adopted a resolution naming the present members of the zoning board of adjustment who are defendants in this proceeding.

The gravamen of the controversy before this court rests in a determination to be made as to whether or not the members of the Zoning Board of Adjustment of Irvington must first be appointed by the mayor alone, or by the mayor subject to confirmation by the council, or whether the mayor may be completely disregarded and the appointment made exclusively by

the council. This problem involves the interpretation of the Zoning Act, N.J.S.A. 40:55-30 et seq. , and the provisions of the Faulkner Act dealing with mayor-council plans. N.J.S.A. 40:69A 31-80.

Until the Faulkner Act was passed in 1950 there existed no room for disagreement as to whether the council had the power to provide for the appointment of members to the municipal Zoning Board of Adjustment in Irvington. In clear and explicit language N.J.S.A. 40:55-36, as amended in 1948, states that "The governing body or board of public works shall provide for the appointment of a board of adjustment * * *. The governing body or board of public works shall provide for the filling of vacancies resulting from the unexpired term of any member."

Under the definitions section, N.J.S.A. 40:55-1.2 and N.J.S.A. 40:55-1.31, "governing body" is defined as follows:

"'Governing' body means the chief legislative body of the municipality. In cities having a board of public works 'governing body' means such board."

A similar definition of the term referring to the board or body with power and authority to legislate appears in R.S. 40:42-2.

It has long been settled that the "governing body" refers to the legislative branch of government as opposed to the executive, and this has always been the generally understood and natural meaning of the term. Kagan v. Caroselli , 30 N.J. 371 (1959); Fitzgerald v. Jersey City , 69 N.J.L. 162 (Sup. Ct. 1902); Vail v. Inhabitants of Plainfield , 9 N.J. Misc. 817, 155 A. 679 (S. Ct. 1931); Frazer v. Teaneck Township , 1 N.J. 503 (1949); Glick v. Trustees of Free Public Library of Newark , 2 N.J. 579 (1949); Freint v. Dumont , 108 ...


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