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In re Certain Petitions for A Binding Referendum

Decided: April 29, 1977.

IN RE CERTAIN PETITIONS FOR A BINDING REFERENDUM IN THE VILLAGE OF RIDGEFIELD PARK


Dalton, J.s.c.

Dalton

This order to show cause is brought as a declaratory judgment action pursuant to N.J.S.A. 2A:16-50 et seq. , and projects issues respecting the permissibility and propriety of an initiative-referendum petition by which numerous residents and electors of the Village of Ridgefield Park (village) seek to enact a comprehensive traffic ordinance pursuant to N.J.S.A. 40:74-9 et seq.

In May 1975 the village, organized as a commission form of government under the Walsh Act, N.J.S.A. 40:70-1 et seq. , adopted its present traffic ordinance which was intended to alleviate traffic circulation and congestion problems in the community.

Among other things the ordinance proscribes overnight parking on certain main business streets, sets out an alternate side of the street parking schedule, designates certain public thoroughfares as one-way streets, and provides

special seasonal parking regulations in order to facilitate snow plowing and removal.

Dissatisfied with certain inconveniences created by the new ordinance, numerous residents attended the village commissioners' public meetings and voiced objection. Although the ordinance was modified in part to reflect the views of these objectors, on March 21, 1977 the commissioners were served with a petition signed by some 1300 village residents and electors seeking either the enactment by the board of commissioners of a proposed new traffic ordinance or the submission of it to the binding vote of the people, pursuant to N.J.S.A. 40:74-9 et seq.

As a result of the foregoing, this action was initiated by the village which seeks a declaration that traffic ordinances as such cannot be the subject of binding referenda; that the proposed ordinance is void as violative of N.J.S.A. 39:4-203; that the petition need not be submitted to the commissioners nor be the subject of a referendum. Additionally, the village seeks to hold a nonbinding referendum pursuant to N.J.S.A. 19:37-1 at the next general election for separate consideration by the electorate of several aspects of the current traffic ordinance, and a declaration that the penalty clause of the current ordinance represents a state-wide uniform penalty fixed by act of the Legislature and thus is subject to alteration only by that body.

With respect to the gravamen of the village's complaint -- the unavailability of the initiative-referendum process -- it ought to be noted that the initiative-referendum enabling statutes have been afforded a liberal construction in order to facilitate greater voter participation in municipal affairs. See, e.g., Sparta Tp. v. Spillane , 125 N.J. Super. 519, 523 (App. Div. 1973). This favorable view, however, is subject to and must be construed with governing constitutional and statutory provisions. 5 McQuillin, Municipal Corporations (3d ed. 1969), § 16.50. Thus, where the subject matter of the referendum is one of statewide concern in which the Legislature has delegated power to a specific body or board and not to local

electors, the action is generally found to be outside the scope of the initiative-referendum process. Smith v. Livingston Tp. , 106 N.J. Super. 444, 457 (Ch. Div. 1969), aff'd o.b. 54 N.J. 525 (1969). Likewise, an implied limitation upon this power will be found where the subject matter of the referendum is executive or administrative in nature rather than legislative. Cuprowski v. Jersey City , 101 N.J. Super. 15 (Law Div. 1968) aff'd o.b. 103 N.J. Super. 217 (App. Div. 1968); see also, McCrink v. West Orange , 85 N.J. Super. 86 (App. Div. 1964). In Cuprowski the court considered these distinctions and noted some general principles which aid in characterizing any given ordinance, stating (101 N.J. Super. at 23) that "[m]atters which are of a permanent or general character are considered to be legislative while those which are temporary in operation and effect are deemed administrative." In this connection it has been said that an ordinance which shows an intent to form a permanent rule of government until repealed is one of a permanent nature. 5 McQuillin, op. cit. , § 16.55. Traffic ordinances in general are not of a permanent character. Indeed, ordinances of this type lend themselves to and are the subject of frequent change, whether that change be necessitated by the growth of the community and region or effected by the desire of the local governing body to implement what it considers to be a more efficient and effective ordinance. Thus, the character of the ordinances here in question must be seen as essentially administrative, not legislative.

Moreover, were the proposed ordinance to win the support of the electorate and the required approval of the Director of Motor Vehicles, N.J.S.A. 40:74-18, would render impossible its repeal or amendment except by further ...


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