Goldmann, Kilkenny and Collester.
On cross-motions for summary judgment, the Law Division judge decided in defendant's favor and dismissed plaintiffs' complaint seeking judgment compelling defendant Township Committee of the Township of Dover to adopt a resolution giving its consent to the annexation by the Borough of Lavallette of that part of the township known as West Point Island.
West Point Island has been a part of Dover Township since 1767. The island, approximately one-half square mile in area, is located in Barnegat Bay. It is practically contiguous to Borough of Lavallette and is separated from the mainland of Dover Township by the width of Barnegat Bay. For the people on West Point Island to get over to the township's business district requires a 7 1/2-mile trip via Mathis Bridge.
The latest census count indicates that 84 persons are year-round residents of West Point Island. The summer population is 2000 or more.
A petition signed by 90% of the home owners and 74% of the legal voters of the island, seeking a separation of the island from Dover Township and annexation to Lavallette, was submitted to the Dover Township Committee, the township's governing body, and its consent to the annexation proposal requested. R.S. 40:43-26, governing petitions for annexation, requires that such petitions be signed by "at least 60% of the legal voters" residing in the area in question. Instead of giving such consent, the township committee adopted a resolution refusing its consent on the sole ground that the annexation would, in its view, "not be in the best interests of all of the people of the Township of Dover."
Plaintiffs' proceeding in the Law Division followed, with the result first noted above.
R.S. 40:43-26 further provides that:
"Such petition shall also have attached thereto a certified copy of a resolution of the governing body of the municipality in which said land is located, consenting to said annexation, which resolution said governing body is hereby authorized and empowered to adopt."
The Law Division ruled that the township governing body had an absolute right under the statute to refuse to give its consent to the annexation. On this basis alone, defendant's motion for summary judgment was granted and the complaint dismissed. The trial court expressly refrained from determining the reasonableness of the township committee's refusal to consent because it found an incompleteness and an insufficiency of evidence in the record.
Plaintiffs contend that the consent of the governing body of Dover Township was purely ministerial under R.S. 40:43-26, a mere statutory formality which the township committee had no right to refuse, once the petition was found to be in order.
To support their contention, plaintiffs compare the above-quoted language with that in the succeeding paragraph of R.S. 40:43-26 relating to the powers of the governing body of the municipality to which the land is sought ...