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Tibbs v. Boemi

Decided: March 16, 1970.

VINCENTE TIBBS, PLAINTIFF-APPELLANT,
v.
HENRY BOEMI, DEFENDANT-RESPONDENT



Conford, Collester and Kolovsky. The opinion of the court was delivered by Kolovsky, J.A.D. Conford, P.J.A.D. (dissenting).

Kolovsky

As the court noted in City of Clifton v. Zweir , 36 N.J. 309, 311-312 (1962):

The Municipal Planning Act of 1953, N.J.S.A. 40:55-1.1, et seq. , applicable to all municipalities, provides for local planning board membership in four categories:

Class I -- "Mayor," to serve a term corresponding to his official tenure;

Class II -- "one of the officials of the municipality to be appointed by the mayor," whose term "shall terminate with the term of the mayor appointing him";

Class III -- "a member of the governing body to be appointed by it" for a term corresponding to the appointee's official tenure;

Class IV -- "a specified number of other citizens of the municipality to be appointed by the mayor" to serve for designated periods. (N.J.S.A. 40:55-1.4.)

The dispute in this case is as to which of the two members of the city council, of the City of Englewood, is entitled to

sit as the class III member of its planning board. The trial court ruled in defendant's favor and plaintiff appeals.

Plaintiff Tibbs' present term as councilman began on January 1, 1968 and will end on December 31, 1970. By resolution adopted on January 8, 1968 the city council appointed Tibbs as the "Class III Council member" of the municipal planning board "for a term corresponding to his official tenure as Councilman." It is conceded that the tenure of the councilman who had theretofore been the class III member had expired.

On December 31, 1968 Tibbs submitted his resignation as class III member of the planning board. On January 2, 1969 the city council adopted a resolution which recited Tibbs' resignation and appointed one Mettler, a member of the council whose term of office as councilman would expire on December 31, 1969, as "Class III member of the Planning Board * * * to so serve until December 31, 1969."

The next pertinent official action was a resolution adopted on December 31, 1969 by the city council, referred to in the "agreed statement of facts" as "the administration leaving office." (The reference is to the fact that as the result of the November 1969 election for councilmen to take office on January 1, 1970, majority control of the city council passed on that date from one political party to the other.)

The resolution, after reciting Tibbs' appointment on January 8, 1968 as class III member of the planning board, his resignation on December 31, 1968, Mettler's appointment on January 2, 1969 to replace Tibbs, and the submission on December 26, 1969 of Mettler's written resignation as such class III member, resolved that Mettler's resignation be accepted and appointed Tibbs

to serve out the unexpired term established by said Councilman Vincente K. Tibbs on January 8, 1968, as the Councilmanic Representative (Class III Member) to the Planning Board of the City of Englewood, as provided by N.J.S. 40:55-1.4.

On January 6, 1970 the city council, the "new administration," appointed defendant Boemi as class III member of the planning board. Boemi had been elected at the November 1969 election as a councilman for a term beginning January 1, 1970 and ending December 31, 1971.

On January 13, 1970 Tibbs and Boemi each took oath of office as class III member of the planning board and each demanded to be seated as such member at the Planning Board meeting held on that day. The planning board refused to seat either. The present action was then instituted.

Resolution of the controversy requires an interpretation of N.J.S.A. 40:55-1.4 which, after providing for the four classes of members of a municipal planning board and their ...


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