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Carton v. Mayor and Council of Borough of Tinton Falls

Decided: February 19, 1981.

J. VICTOR CARTON: JAMES D. CARTON, JR.: J. GERARD CARTON: ROBERT V. CARTON: THOMAS F. KIELY: WILLIAM R. KIELY, JR.; JOHN F. KIELY, JR.; J. VICTOR CARTON, ROBERT V. CARTON AND F. EUGENE CALAFATO, TRUSTEES OF THE LAST WILL AND TESTAMENT OF JOHN F. KIELY, DECEASED, PLAINTIFF-APPELLANTS,
v.
THE MAYOR AND COUNCIL OF THE BOROUGH OF TINTON FALLS, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

Michels, Kole and Ard. The opinion of the court was delivered by Ard, J.A.D.

Ard

Pursuant to N.J.S.A. 40:43-26 appellants petitioned the mayor and council of the Borough of Tinton Falls to adopt a resolution consenting to the deannexation of a tract of land from the borough. The appellants constitute 100% of the ownership of said lands. Their ultimate goal is to petition the mayor and township committee of the Township of Neptune to annex said lands; however, before doing so, they must obtain the consent of the municipality where the property is located.

At the public meeting on August 21, 1979 the petition was presented to the mayor and council of the Borough of Tinton Falls. One of the petitioners was asked to detail the reasons for which the deannexation was sought. He declined to respond, relying on N.J.S.A. 40:43-26, and further asserted that reciting reasons would be meaningless in light of prior advice of the mayor given to his partner that the request would not be granted. The municipality then adopted a resolution denying the petition because "no reasons whatsoever have been supplied by the petitioners to support their petition seeking consent to deannexation."

Appellants then filed a complaint in lieu of prerogative writs seeking rescission of the aforesaid resolution and requesting adoption of a resolution consenting to the deannexation. In its answer respondents claimed the petition was defective and "unsupported by any basis for relief." The answer also asserted

that the granting of petitioners' request would "cause a great hardship to the Borough of Tinton Falls, including its Zone Plan, Tax Base and present and future development of the municipality." The borough then moved for summary judgment, and appellants filed a cross-motion for summary judgment. The borough's motion was accompanied by an affidavit of the borough clerk which confirmed the allegation that "[a]t the meeting, Mr. Carton was asked to detail the reasons the Petitioners sought to be deannexed from the Borough of Tinton Falls and annexed to the Township of Neptune, but Mr. Carton declined to state any reasons." After argument on the motions, the trial judged granted the municipality's motion to dismiss the complaint and denied appellants' motion for the relief sought in the complaint. In doing so the trial judge stated:

So, I am ruling that I will read into the statute that when you make a petition to the Borough of Tinton Falls you have to give initial reasons indicating why the property should be allowed to be moved into the township of Neptune . . . .

The underlying issue involved in this appeal is whether appellants are required to advance reasons to the municipality when requesting consent to deannexation. Obviously, in the ordinary situation, it would be in the best interest of the petitioner to set forth cogent reasons for the request. Logic dictates that this would enhance the petitioner's chances of success. On the other hand, one would be hard-pressed to conjure reasons that would appeal to the municipality and that would not be in the self-interest of the petitioner. In the usual case, the reasons would not be relevant to the considerations facing the municipality's determination.

N.J.S.A. 40:43-26*fn1 provides:

Land being in one municipality may be annexed to another municipality to which said land is contiguous. To effect such annexation, a petition in writing shall be presented to the governing body of the municipality to which such annexation is sought to be made, specifically setting forth the boundaries of such

land, signed by at least sixty per cent of the legal voters residing thereon. In case no voter resides thereon, such petition may be signed by the person or persons owning at least sixty per cent of said land as shown by the assessor's duplicate for the preceding year. Such petition shall be duly verified by one of the signers thereof, and shall have attached thereto the oath of an assessor of the municipality in which said land is located, or of some other person having access to such assessor's books, setting forth the assessed value of the real estate contained within such boundaries for the preceding year, and the amount of real estate assessed to any of the persons whose names are signed to such petition. Such petition shall also have attached thereto a certified copy of ...


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