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Retz v. Mayor and Council of Township of Saddle Brook

Decided: March 19, 1976.


For reversal -- Chief Justice Hughes, Justices Mountain, Sullivan, Pashman, Clifford and Schreiber and Judge Conford. For affirmance -- None. The opinion of the Court was delivered by Clifford, J.


[69 NJ Page 565] Plaintiff and others sought by means of a petition to protest a bond ordinance passed by defendant Council of the Township of Saddle Brook to fund a new municipal complex. The defendant Township Clerk issued a certificate holding the petition invalid, whereupon plaintiff filed a complaint in lieu of prerogative writ to compel a referendum on the ordinance and to enjoin its implementation until the voters of Saddle Brook could be heard on the issue. In dispute is the sufficiency of plaintiff's petition, which depends principally upon the determination of whether the signature of one spouse on a taxpayers' petition filed pursuant to the Home Rule Act, N.J.S.A. 40:49-27, may be considered to represent the full assessed value of property held by tenants by the entirety. Where one spouse signed plaintiff's petition and the tax rolls showed the property was held by tenancy by the entirety, the Township Clerk counted only one-half the assessed value of the property represented by that signature, thereby diminishing by $4,538,500 the total property value declared in the petition. The trial court upheld that method of valuation and the Appellate Division affirmed, 134 N.J. Super. 290 (1975). We granted plaintiff's petition for certification, 68 N.J. 491 (1975). Because the integrity of certain contracts is implicated by the decision in this case, thus making desirable early announcement of our

determination, we entered an Order of Reversal on January 12, 1976. We now set forth our reasons for that determination.


The bond ordinance in this case was intended to fund a new municipal building housing administrative offices and the police department, and other improvements including an addition to the fire house and street widening. Plaintiff operates a bakery located across the street from the site of the proposed municipal complex. The bakery is owned by C.S.R. Realty, a corporation of which plaintiff is an officer, director, and majority shareholder.

On September 17, 1974 the Township Council adopted the bond ordinance, a copy of which was published in a local newspaper on September 19. On September 27 a petition protesting the adoption of the ordinance and bearing approximately 989 signatures was filed with the Township Clerk. She filed a certificate on October 10, 1974, declaring the petition invalid. That same day the Township awarded contracts to low bidders for three phases of the ordinance.

The petition, which plaintiff initiated and prepared but did not sign, expressed only the signers' protest. It was silent concerning a referendum and did not purport to comply with or enforce operation of any statute. The Legislature has provided two mechanisms for halting the implementation of an ordinance passed by a municipal council: the referendum provision, N.J.S.A. 40:69A-185, contained in the Optional Municipal Charters Law, more commonly known as the Faulkner Act, N.J.S.A. 40:69A-1 et seq.; and an analogous provision in the Home Rule Act, N.J.S.A. 40:49-27.

N.J.S.A. 40:69A-185 provides in pertinent part that "any ordinance passed by the council" of a Faulkner Act municipality may be submitted by referendum to the voters as long as 25% of the registered voters in a municipality

of under 70,000 inhabitants file with the municipal clerk a petition protesting the adoption of the ordinance within 20 days after its final passage and approval. Saddle Brook is a Faulkner Act municipality, having functioned as a Mayor-Council Plan B as provided by the Act since July 1, 1969.

Contrasted with this general provision is the Home Rule Act's specified treatment of the subject before us. N.J.S.A. 40:49-27 reads in part as follows:

Any ordinance authorizing the incurring of any indebtedness, except for current expenses shall become operative ten days after the publication thereof after its final passage, unless within said ten days a protest against the incurring of such indebtedness shall be filed in the office of the municipal clerk signed by taxpayers representing ten per cent in amount of the assessed valuation of such municipality, whose names appear on the last preceding assessment roll thereof, in which case such ordinance shall remain inoperative until a proposition for the ratification thereof shall be adopted, at an election to be held for that purpose, by a majority of the qualified voters of the municipality voting on the proposition * * *.

The certificate of the clerk of the municipality filed in his office as to the filing or sufficiency of any protest shall be conclusive ...

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