On appeal from the Superior Court, Law Division, Bergen County.
Plaintiff tenants' association appeals from a judgment upholding a decision of the Municipal Council of Clifton that its vote by three members to two to reverse a rent levelling board capital improvement surcharge was a nullity because less than a majority of all seven members of the council voted affirmatively. We affirm.
Clifton has a municipal manager form of government under N.J.S.A. 40:79-1 to 40:84-19. Pursuant to N.J.S.A. 40:81-20, a majority of all the members of the council is a quorum and the affirmative vote of a majority of all the members is "necessary to take any action or pass any measure, except as otherwise provided by law." We are cited no provision of statute law which would authorize an affirmative vote of a majority of a
quorum but of less than all the members of the council upon appellate review of a rent levelling board decision.
Plaintiff's argument on appeal is attenuated and, we conclude, unsound. The municipal authority to enact rent control ordinances derives from N.J.S.A. 40:48-2 of the Home Rule Act of 1917. See Inganamort v. Bor. of Fort Lee, 62 N.J. 521, 536 (1973). The Home Rule Act imposes no limitation on the common law rule that a majority of a quorum of a municipal governing body is sufficient to take action or to pass a measure. Because, in administering a rent control ordinance the council is exercising a power granted by the Home Rule Act, not by the Municipal Manager Act, plaintiff contends that the common law rule, not N.J.S.A. 40:81-20, should govern.
In our view, the flaws in plaintiff's argument are as follows. To begin with, the police power delegated to municipalities under the Home Rule Act was continued in the municipal council under the Municipal Manager Act, enacted in 1923. N.J.S.A. 40:81-9 provides:
The municipal council shall be the governing body of the municipality and except as herein otherwise provided, shall have and possess all administrative, judicial and legislative powers and duties now had, possessed and exercised by the governing body of such municipality and all other executive or legislative bodies in such municipality, and shall have complete control and supervision over the affairs of the municipality to be exercised in the manner herein prescribed.
Plaintiff would construe the phrase "except as otherwise provided by law," which follows the requirement of a majority vote of the entire council membership in N.J.S.A. 40:81-20, as "except as otherwise provided by any specific statute or by common law when the council is exercising a power conferred originally by a statute which fails to provide a minimum voting formula."
That construction would limit the majority of the entire council membership requirement of N.J.S.A. 40:81-20 to internal administrative matters which the council is authorized to take action on pursuant to the Municipal Manager Act. It would nullify the statutory voting limitation whenever the
council was passing a measure or acting administratively or judicially in the exercise of its delegated police power under the Home Rule Act or in the exercise of any other delegated statutory power, unless, as in the Municipal Land Use Law, N.J.S.A. 40:55D-1 et seq., the minimum voting formula ...