On appeal from the Superior Court, Law Division, Cape May County.
Allcorn, Francis and Morton I. Greenberg. The opinion of the court was delivered by Morton I. Greenberg, J.A.D.
The matter comes before the court on appeal from a judgment of the Superior Court, Law Division, in an action to compel defendants to cause a special election to be held pursuant to N.J.S.A. 40:74-14. The purpose of the proposed special election is to determine whether an ordinance should be adopted in the Borough of Wildwood Crest to repeal portions of an earlier ordinance providing for a beach use fee. The proposed ordinance will additionally affirmatively provide that the beaches in Wildwood Crest will be free.
Wildwood Crest is an ocean front community in Cape May County with a substantial beach area. The municipality is governed by a three-member commission government pursuant to the Commission Form of Government Law, N.J.S.A. 40:70-1 et seq. Prior to 1981 the municipality did not have a general beach use fee. In the fall of 1981 the municipal commission adopted Ordinance 564. This ordinance declared the municipal beaches to be paid beaches and provided a schedule of charges. Additionally, the ordinance established beach use regulations. Apparently some persons within the municipality opposed the imposition of these beach fees. Accordingly, they made an effort to cause the governing body to present the ordinance to the public for approval pursuant to N.J.S.A. 40:74-5. For reasons not germane to this action these efforts were not successful.
Following the objectors' initial frustrations the persons opposing the beach fees adopted a different approach. They proposed an ordinance pursuant to N.J.S.A. 40:74-9. This ordinance provided that the beaches in Wildwood Crest were to be free. It further stated that the sections of Ordinance 564 which established the beach fee provisions were to be repealed. Pursuant to N.J.S.A. 40:74-2 the municipal clerk examined the petition and certified that it appeared to satisfy the procedural requirements of N.J.S.A. 40:74-11.
On March 22, 1982 this action was started. Plaintiffs are the Concerned Citizens of the Borough of Wildwood Crest, stated in the complaint to be an unincorporated association comprised of more than ten taxpayers in Wildwood Crest, and Richard S. Adelizzi, a resident voter and taxpayer in the borough. Defendants are the commissioners of the borough, the borough clerk and the municipality itself. The complaint recited the background of the dispute. It indicated that the commissioners were obliged either to pass the ordinance or to provide for its submission to the voters. It was alleged that the petition had been certified on March 2, 1982 by the municipal clerk as procedurally valid; that the municipality had neither passed the proposed ordinance nor caused a special election to be held to determine whether the ordinance should be adopted, and that because of the passage of time plaintiffs were then entitled to an order compelling defendants to call a special election for submission of the ordinance to the voters.
Upon the filing of the complaint defendants were ordered by a judge of the Law Division to show cause on March 31, 1982 why the relief requested in the complaint should not be granted. Defendants were further ordered to file an answer to the complaint. On March 31, 1982 defendants filed an answer. Defendants admitted certain allegations of the complaint, denied others and stated that they had insufficient information to admit or deny the remaining allegations. The answer also recited that Wildwood Crest had started or was about to start a
declaratory judgment action and that by reason of this new action the complaint was moot.
On March 31, 1982 the declaratory judgment action was filed by the borough. Various individuals who signed the petition were made defendants. The borough sought judgment declaring the petition to be a nullity. Its theory was that because of its content the proposed ordinance was not subject to the initiative process. Further, the borough requested a declaratory judgment as to the meaning of the term "free beach" as used in the proposed ordinance.
A hearing was held in the Law Division on March 31, 1982. The trial judge orally ordered the two pending actions to be consolidated.*fn1 The judge then determined the matter on the within record and oral argument. No oral testimony was presented. The judge stated that the two actions raised the same questions and that the subject matter of the proposed ordinance was a proper subject for initiative. The judge then indicated that the municipality should decide at its next meeting whether to adopt the new ordinance or to call for a special election to consider it. The judge stated that if the municipality did not act, he would sign an order directing a special election. The judge further held that he would retain jurisdiction over the case. No formal order was then entered.
A meeting of the board of commissioners was held on April 6, 1982. At that time the commissioners neither took steps to adopt the ordinance nor to initiate a referendum election. Instead, they authorized the municipal attorney to ...