Plaintiff brings this action in lieu of prerogative writs, R. 4:69, in order to compel officers of the City of Millville to submit ordinance 30-1969 to public referendum. N.J.S.A. 40:74-5. Motions for summary judgment were made by all parties and the matter is presently before the court on the basis of the complaint, affidavits and briefs.
Ordinance 30-1969 authorized Millville to enter into a contract with the Landis Sewerage Authority (Landis) whereby the Millville sewerage utility would process effluent originating from within a portion of the neighboring City of Vineland.
In 1966 Millville was directed by the State Board of Health to expand its sewerage processing facilities. At that time the Millville plant was functioning at between 90% and 100% of its two million gallon capacity. Relying upon the advice of its consulting engineers, Millville elected to erect a new plant with a five million gallon capacity. It was projected that this plant would satisfy the city's needs until the year 2000.
In 1967 Millville declared its sewer department to be a self-liquidating utility. Therefore, a bond ordinance was adopted by the board of commissioners authorizing the sale of $2,260,000 of bonds. The new plant is presently under construction.
Sometime in 1969 discussions began concerning use of a portion of the new plant to treat effluent from Vineland which would otherwise have been processed by defendant Landis Sewerage Authority. Specifically to be treated was sewerage produced by a shopping center complex which defendant Cumberland Mall Associates (Mall) intend to build on a tract of land on the Vineland side of the boundary with Millville. It is contemplated that this shopping center will include at least four major department stores, a motion picture theater and some 100 "satellite" specialty shops. It is estimated that Cumberland Mall will generate 25,725 gallons of effluent per day, or a fraction of 1% of the Millville plant's total capacity. However, Landis does not have the facilities to treat the projected effluent.
In order to effect such an arrangement, representatives of Landis, Cumberland Mall, and Millville entered into negotiations culminating in the presentation of a resolution to the Millville board of commissioners dated November 3, 1969. This resolution, No. 5590, authorized the execution of a contract between Millville and Landis. The resolution was adopted by a vote of four in favor, with Mayor Rulon Peek opposed. Mayor Peek then instructed the city solicitor, Edward S. Miller, to submit a legal opinion as to the authority for submitting the resolution for his signature. The solicitor
advised that instead of the resolution an ordinance embodying the subject matter of the resolution would be prepared. This ordinance, No. 30-1969, was introduced for first reading at the commission meeting of November 18, 1969. Attached thereto was a proposed agreement of lease. The contract provided that Millville would lease Landis its sewage facilities for a period of ten years and that Landis would pay as rent a sum equal to 75% of the sewer charges that Landis would collect from Cumberland Mall. Later a revised agreement was substituted, incerasing the time required for a written notice renewing the agreement.
On December 2, 1969, upon second reading, the ordinance was adopted by a vote of three in favor, with Mayor Peek again opposed. One commissioner was absent. All parties acknowledge that the passage of this ordinance was surrounded by great controversy. Petitions in opposition to its enactment had been submitted to the city commission. Vocal opposition appeared at all commission meetings at which the issue was considered. Open letters have appeared in local newspapers.
Continued protests were heard after passage of the ordinance. On December 11, 1969, 41 petitions containing 1,886 signatures protesting the passage of ordinance 30-1969 were filed with the Milville municipal clerk. On December 12, 1969 an additional 15 petitions containing 293 signatures were filed. It was the apparent intention of those who circulated these petitions to have them constitute the basis of a remonstrance, as provided for in N.J.S.A. 40:74-5. That statute states:
If within ten days after the final passage of an ordinance, except ordinances authorizing an improvement or the incurring of an indebted ness, other than for current expenses, where other requirements are made by law, a petition signed by electors of the municipality equal in number to at least fifteen per cent of the entire vote cast at the last preceding general municipal election protesting against the passage of such ordinance, be presented to the board, it shall thereupon be suspended from ...