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Accardi v. Mayor and Council

Decided: November 15, 1976.

JOHN ACCARDI AND FRANCES M. ACCARDI, PLAINTIFFS,
v.
MAYOR AND COUNCIL OF THE CITY OF NORTH WILDWOOD, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, THE BOARD OF ADJUSTMENT OF THE CITY OF NORTH WILDWOOD, RAY RAKOWSKI, BUILDING INSPECTOR OF THE CITY OF NORTH WILDWOOD & JOSEPH BELZ, DEFENDANTS. AVALON HOME AND LAND OWNERS ASSOCIATION, A NEW JERSEY CORPORATION NOT FOR PROFIT, PLAINTIFF, V. BOARD OF ADJUSTMENT OF THE BOROUGH OF AVALON; WILLIAM NOBLE, CHAIRMAN OF THE BOARD OF ADJUSTMENT; JOHN P. MILLAR, VICE CHAIRMAN; THOMAS F. BOYLE; LAWRENCE HART AND DAVID F. SNOW, DEFENDANTS



Gruccio, J.s.c.

Gruccio

The above two cases were consolidated for argument since both dealt with the question of what a public body can discuss in a private session under the Open Public Meetings Act (hereinafter the "Sunshine Law"), N.J.S.A. 10:4-6 et seq.

In Accardi one Belz applied to the North Wildwood Board of Adjustment for a variance to convert an old garage and auto showroom (which was a nonconforming use) into a delicatessen, beauty shop and gift shop. On March 29, 1976 the board recommended granting the variance and on May 18, 1976 the city council approved the recommendation. Thereafter, plaintiffs filed a complaint in lieu of prerogative writs to enjoin the use granted by the variance. The trial judge remanded the matter to the board for a de novo hearing based upon the incomplete and inadequate record below.

On June 16, 1976 the board conducted a second hearing. At this second hearing the board members went into a private session with the solicitor. Upon their return they recommended the approval of the variance. On June 29, 1976, in private session, the city council approved the variance for the second time, whereupon the present action was commenced.

In Avalon plaintiff seeks to compel defendant Avalon Board of Adjustment (hereinafter, Avalon board) to conduct its meetings in public and to enjoin the board from going into a private session for discussion, review and decision making. Plaintiff Avalon Home and Land Owners Association (hereinafter association) is a nonprofit corporation consisting of home owners in the Borough of Avalon who are either permanent or summer residents. At its public meetings the Avalon board permits the introduction of evidence in public and then goes into private closed session for

review, discussion and initial decision. The board then opens the meeting, gives its finding of facts in public and votes on the matter in public. The board justifies its private sessions by a resolution it passed which states:

Whereas, Chapter 231 Public Law of 1975 (Sunshine Law) authorizes closed sessions following public hearing in quasi-judicial matters and

Whereas, proceedings before the Zoning Board of Adjustment of the Borough of Avalon are quasi-judicial in nature; and

Whereas, the Board desires to discuss the merits of the application in closed session subject to its disclosure to the public at the conclusion thereof:

Now, be it Resolved, that the meetings of the Zoning Board of Adjustment of the Borough of Avalon be and the same is hereby closed to the public, subject to disclosure of the results of the discussion at the conclusion thereof later this evening.

The question is whether these private sessions are in accordance with the Sunshine Law. Defendant Avalon board alleges it is exempt because it is not a "public body" within the meaning of the Sunshine Law but rather a part of the judicial branch which is exempt under the Sunshine Law. N.J.S.A. 10:4-8a reads:

"Public body" means a commission, authority, board, council, committee or any other group of two or more persons organized under the laws of this State, and collectively empowered as a voting body to perform a public governmental function affecting the rights, duties, obligations, privileges, benefits, or other legal relations of any person, or collectively authorized to spend public funds including the Legislature, but does not mean or include the judicial branch of the government, any grand or petit jury, any parole board or any agency or body acting in a parole capacity, the State Commission of Investigation or any political party committee organized under Title 19 of the Revised Statutes.

The Right to Know Law, N.J.S.A. 10:4-1 et seq. , was the predecessor to the Sunshine Law. The purpose of the Right to Know Law was to admit the public to any meeting of a public body where official action was taken. N.J.S.A. 10:4-3. A public body in that law was defined essentially

the same as a "public body" under the Sunshine Law. In Wolf v. Park Ridge Bd. of Adj. , 79 N.J. Super. 546, 552 (App. Div. 1963), a zoning board of adjustment was held to be a "public body" within the meaning of the Right to Know Law and the exception of the judiciary from the law was held to be inapplicable to such board. Therefore, based upon Wolf and the clear definition of a "public body" in N.J.S.A. 10:4-8(a), I find the Avalon board to be a "public body" within the meaning of the Sunshine Law.

Defendant Avalon board alleges that even if the Sunshine Law applies to it, it is complying with the law by publicly disclosing the facts reached in its private deliberations. I do not agree. The clear language of N.J.S.A. 10:4-7 and the public policy of the statute contained therein contradict defendant's allegation.

Few statutes contain within them the public policy behind their enactment. One statute that does is the statute dealing with labor injunctions, N.J.S.A. 2A:15-52, which effects labor's highly regarded and highly protected right to exert pressure on management by striking or picketing. The Legislature's inclusion of the public policy within the statute itself implies the importance which the Legislature placed upon its proper interpretation of the statute in order that the purpose behind the statute might be attained. For this reason the public policy language contained in N.J.S.A. 10:4-7 should be read carefully.

N.J.S.A. 10:4-7 states:

The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public ...


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