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Township Committee of Township of Edgewater Park v. Edgewater Park Housing Authority

Decided: October 30, 1982.


Haines, A.j.s.c.


The Township Committee of Edgewater Park, as permitted by N.J.S.A. 55:14A, The Local Housing Authority Law, adopted ordinance 2-81 creating defendant Housing Authority. The ordinance became effective on February 22, 1981. It provided for a membership of six persons, five members (commissioners) to be appointed by the township committee and one by the Director of the Public Housing and Development Authority of the State Department of Environmental Protection. The five committee appointments were made on March 11, 1981. No member was appointed by the Director.

Unfortunately, when Ordinance 2-81 was enacted the township committee failed to consider the 1975 amendments to the Local Housing Authority Law which increased membership requirements for the Authority from six to seven, five to be appointed by the governing body, one by the mayor, and one by the Director. N.J.S.A. 55:14A-4. When this oversight was recognized, the committee, uncertain as to its effect, adopted a complete new housing authority ordinance, effective August 26,

1981 -- Ordinance 15-81. This differed from the prior ordinance, 2-81, only in its provision for a seven member Authority, in accordance with the amended statute. The five committee appointees continued in office without further formal action. The mayor appointed a sixth member on October 7, 1981. No member has ever been appointed by the Director. The five members, joined by the sixth after October 7, 1981, took numerous actions on behalf of the Authority.

On December 31, 1981 the mayor issued certificates of appointment to each of its six commissioners, setting forth the dates on which their terms of office commenced and expired. Charles Crook, an original appointee of the committee, received a certificate stating that his one-year term commenced on August 26, 1981, the effective date of the second ordinance. The Authority therefore claims that his term did not expire until August 25, 1982. Plaintiff, a differently constituted governing body than the 1981 township committee, claims that his term expired on March 10, 1982, one year after his appointment, or on March 25, 1982 when he attended the first meeting of the Authority and is therefore said to have first assumed the duties of his office.

Plaintiff also raises questions concerning the Sunshine Law, N.J.S.A. 10:4. Issues concerning the payment of attorney's fees are addressed by both parties. Plaintiff's significant argument, however, is that ordinances 2-81 and 15-81 are legally defective, that they did not succeed in creating the Authority.

A. The Creation of the Housing Authority

I conclude that ordinance 2-81 effectively created the Housing Authority. This was the obvious and primary intention of the township committee when it adopted that legislation, an intention which was reiterated when ordinance 15-81 was passed only five months later. The record reflects a candid admission of oversight in the failure to consider the 1975 statutory amendment increasing the membership of the Authority from six to seven, an oversight which the committee attempted

to correct by adopting the second ordinance. Clearly, it did not matter to the governing body whether the Authority was to operate with six or with seven members. Its intention was to comply with the statutory mandate. The failure to establish correct membership requirements for the Authority need not and should not frustrate that intention. The obligation of the court is to do otherwise -- to so read the ordinance, if possible, as to make the legislative intention effective, Schierstead v. Brigantine, 29 N.J. 220, 230 (1959). That reading is entirely permissible here.

The membership requirements for the Authority, insofar as the ordinance is concerned, are superfluous. The statute is mandatory. N.J.S.A. 55:14A-4 provides that "the authority shall consist of seven members . . ." (emphasis supplied). Thus, the statute itself provides for the Authority's membership; repetition of its language in the municipal legislation was not necessary; that language became a part of the ordinance as a matter of law. This is particularly true of housing authorities which the courts consider to be independent entities, receiving their powers directly from the Legislature pursuant to the statute. Thus, in Monte v. Milat, 17 N.J. Super. 260 (Law Div.1952), Judge [later Justice] Proctor said:

See, also, Tumulty v. Jersey City, 57 N.J. Super. 503, 511 (App. Div.1959); Paterson v. Paterson Housing Auth., 96 N.J. Super. 394, 404 (Law Div.1967). The automatic nature of the statute is further emphasized by the provision in the 1975 amendment to N.J.S.A. 55:14A-4, which dealt with authorities having only six members. It reads:

The chief executive of a county or municipality which has heretofore created a housing authority consisting of five members appointed by the governing body, shall forthwith appoint one additional commissioner for a 5-year term.

Thus, the Legislature did not require the adoption of an ordinance in order to establish a seven-member board under the new law.

The rule adopted here, which made it unnecessary to repeat statutory language in the ordinance, is set forth in Duffcon Concrete Products v. Cresskill, 1 N.J. 509 (1949), a zoning case:

The guiding standards which govern the board of adjustment are carefully set forth in R.S. 40:55-39 [now N.J.S.A. 40:44D-70] provided for in the zoning ordinance, its powers stem directly from the statute . . . and may not in any way be circumscribed, altered or extended by the municipal governing body. Under these circumstances, the inclusion in the zoning ordinance of a word for word recital of the statutory powers of the board of adjustment would be superfluous. [at 515-516]

This approach is also supported by general guidelines for the construction of legislation. For example, in New Capitol Bar & Grill Corp. v. Employment Security Div., 25 N.J. 155 (1957), the court said:

It is frequently difficult for a draftsman of legislation to anticipate all situations and to measure his words against them. Hence cases inevitably arise in which a literal application of the language used would lead to results incompatible with the legislative design. It is the proper function, indeed the obligation, of the judiciary to give effect to the obvious purpose of the Legislature, and to that end "words used may be expanded or limited according to the manifest reason and obvious purpose of the law. The spirit of the legislative direction prevails over the literal sense of the terms." [at 160]

See, also, State v. Madewell, 117 N.J. Super. 392 (App.Div.1977), in which the Appellate Division said:

In reaching this interpretation of N.J.S.A. 2A:111-35 we have followed the accepted doctrine of disregarding punctuation, and adding or deleting words or phrases where necessary to arrive at the legislative intent. [at 396]

The interplay of the mandatory, automatic statutory rule and the rule regarding the severability of legislative enactments, permitting significant provisions in a particular enactment to survive when other provisions are struck down, also permits this result. The severability ...

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