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Gillson v. Heffernan

Decided: July 1, 1963.

HUGH M. GILLSON, ET AL., PLAINTIFFS-RESPONDENTS,
v.
ROGER L. HEFFERNAN, DEFENDANT-APPELLANT, AND DAVID DOWD, SUNAO J. IWATSU AND HENRY TOTH, INTERVENERS-APPELLANTS



For reversal and remandment -- Chief Justice Weintraub, and Justices Jacobs, Francis, Proctor, Hall, Schettino and Haneman. For affirmance -- None. The opinion of the court was delivered by Schettino, J.

Schettino

We certified on our own motion this appeal to the Appellate Division from a declaratory judgment of the Superior Court, Law Division, determining as of January 1, 1962, the Class IV membership of the Planning Board of the Borough of Bergenfield and the expiration dates of the terms of the offices.

Bergenfield is governed by a mayor and common council. Plaintiffs are the mayor, four of his appointees to the planning board (Oxman, Kameny, Mendelson and Callahan), and a taxpayer (Brennan). They instituted this action in lieu of prerogative writs in the nature of quo warranto and for a declaratory judgment on January 8, 1962, and sought a determination that the four appointees were entitled to board membership by virtue of their appointments on January 1, 1962, and that defendant Heffernan, who claimed that he was entitled to hold one of these offices until December 31, 1963, was not a board member because either he never legally qualified for the office to which he was appointed on January 1, 1958, due to his failure to take, subscribe and file his oath of office, or his appointment for a term of four years expired on December 31, 1961. Defendant denied the former charge, and by way of an affirmative defense to the latter, he asserted that

although his appointment was for four years, he was entitled to a full statutory six-year term. In reply, plaintiffs alleged that, assuming Heffernan was entitled to remain in office until the end of 1963, he resigned his office early in January 1962.

Two other board members, Iwatsu and Toth, and one former member, Dowd, made application for and were granted permission to intervene. They sought a judgment declaring that Iwatsu and Toth, appointed in 1959 by a former mayor purportedly to full terms of four years, were entitled to full statutory six-year terms, and that Dowd, removed from office by the plaintiff mayor on January 1, 1962, on the ground that Dowd's reappointment in 1961 by the council was improper, was also entitled to a full statutory six-year term, dating from the time of his appointment in 1957 by the former mayor.

The trial court found that plaintiffs failed to establish that Heffernan never qualified for office or that he resigned and dismissed their action in lieu of prerogative writs. With reference to the action for a declaratory judgment, the court held that Oxman, Kameny, Mendelson and Callahan were properly appointed on January 1, 1962, and taking January 1, 1955, as the beginning date of the terms of all Class IV members, it determined that Oxman received a six-year term and that Kameny, Mendelson and Callahan received the unexpired five, four and three years, respectively, of six-year terms. The court also determined that Iwatsu, appointed on January 1, 1959, purportedly for a full term of four years, received the unexpired five years of a six-year term, and that Toth, appointed at the same time and for a like term, received the unexpired four years of a six-year term. Heffernan and Dowd were held to be no longer members: Heffernan, because his 1958 appointment purportedly to a full term of four years should have been for the unexpired four years of a six-year term ending on December 31, 1961; and Dowd, because his 1957 appointment purportedly to a full term of four years should have been for the unexpired four years of a six-year

term ending on December 31, 1960, and his reappointment by the council in 1961 was improper.

Defendant and the interveners appealed. Plaintiffs did not cross-appeal from the dismissal of their action in the nature of quo warranto.

Two other appointees of the council, Sirubi and Campeau, made application to the Appellate Division for an order granting them permission to join in the appeal as intervening parties or as amici curiae. Their application was denied and, counsel informs us, they instituted an action in the Superior Court, Law Division, to have their asserted right to membership on the board determined. As far as we know, this case is still pending in that court.

Bergenfield passed an ordinance in 1932 establishing a planning board of seven members under the provisions of R.S. 40:55-1 et seq., since repealed. Section 3 of that act authorized the governing body of a municipality to create by ordinance a planning board of between five and nine members. Membership was to be made up of four classes, with Classes I, II and III having one member each. Thus, Class IV of the Bergenfield board consisted of four members.

This section provided for a staggered system of appointments to Class IV: "The term of one member of Class IV first appointed shall expire at the end of each year beginning at the end of the first year. Thereafter the term of each shall be the same number of years as there are members of class IV on the board." It also provided that if a vacancy occurred in any class other than by expiration of the term, it was to be filled only for the unexpired term. No provision was made for holdover membership.

All parties agree that the appointments made from the inception of the planning board in 1932 through 1948 were proper and we assume that, after the first staggered appointments, each was for four years. Then, on February 14, 1949, the 1932 ordinance was amended increasing the membership of Class IV to six. Under section 3 of the statute each member of Class IV thereafter should have been appointed for six

years. Nevertheless, each member continued to be appointed for a term of four years.

In 1953 the Legislature enacted the Municipal Planning Act, N.J.S.A. 40:55-1.1 et seq., and repealed R.S. 40:55-1 to 40:55-21. N.J.S.A. 40:55-1.4 retained the identical language of R.S. 40:55-3 with respect to the stagger system of appointments to Class IV membership and the filling of vacancies. Like its predecessor, however, no provision was made for holdover membership. Planning boards created prior to the adoption of the 1953 act were continued by that act, and the members appointed thereto were to hold office until the end of their terms, unless sooner terminated. N.J.S.A. 40:55-1.27. And all rules and regulations adopted by those planning boards regulating the subdivision of lands were to continue in ...


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