On appeal from the Superior Court, Law Division, Hudson County.
Furman, Petrella and Skillman. The opinion of the court was delivered by Furman, P.J.A.D.
Pursuant to N.J.S.A. 40:74-5, plaintiffs petitioned for a referendum on a Union City ordinance increasing the number of fire captains in the city fire department from 20 to 28 and creating the new position of fire protection subcode official. Their petition was rejected on the ground that the ordinance was administrative, not legislative, and hence not subject to referendum. From judgment dismissing their prerogative writ action on the same ground, plaintiffs appeal. We reverse.
N.J.S.A. 40:74-5 authorizes a referendum on any ordinance adopted by the governing body of a Walsh Act municipality, such as Union City, with three exceptions not here relevant. Defendants rely on judicial precedents engrafting another exception, that for so-called administrative ordinances, onto N.J.S.A. 40:74-5 and its counterpart, N.J.S.A. 40:69A-185, applicable in Faulkner Act municipalities. We do not construe those precedents as broadly as defendants urge so as to bar plaintiffs' referendum petition.
Cuprowski v. City of Jersey City, 101 N.J. Super. 15 (Law Div.1968), aff'd o.b. 103 N.J. Super. 217 (App.Div.1968), certif. den. 53 N.J. 80 (1968), held that a budget ordinance was not subject to referendum because of an express exception in N.J.S.A. 40:69A-185. In dictum the trial judge differentiated legislative and administrative ordinances as follows:
Matters 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. Acts which are classified as administrative are those which result from governmental powers properly assigned to the executive department and necessary to carry out legislative policies and purposes already declared either by the legislative municipal body, or devolved upon it by the law of the state.
D'Ercole v. Mayor & Council, Etc., 198 N.J. Super. 531 (App.Div.1984), relied on Cuprowski in barring a referendum on an ordinance authorizing the Borough of Norwood to enter into a 20 year lease of a firehouse owned by the borough's volunteer fire company. The opinion enlarges the definition of administrative ordinances to include those adopted in the exercise
of the municipal governing body's discretion in carrying out delegated legislative powers:
N.J.S.A. 40A:12-15 grants to the borough the discretion to enter into a long-term lease "for any . . . municipal public purpose." The execution of this lease is a discretionary executive action undertaken "to carry out legislative policies and purposes . . . devolved upon . . . [the governing body] by the law of the state." [ 198 N.J. Super. at 545]
That definition encompasses the preponderance of municipal ordinances, which are adopted pursuant to legislative delegation to effectuate "legislative policies and purposes" but the specific terms of which, according to the discretion of the local governing body, are adapted to local conditions. The D'Ercole result is contrary to the legislative policy of encouraging citizen interest and participation in local government by provisions, which should be liberally construed, for the right of referendum, Concerned Citizens of Wildwood Crest v. Pantalone, 185 N.J. Super. 37, 43-46 (App.Div.1982); Lawrence v. Schrof, 162 N.J. Super. 375, 382 (Law Div.1978). Insofar as D'Ercole may be read to support rejection of plaintiffs' petition on the appeal before us, we express our disagreement with D'Ercole.
The proper distinction between legislative ordinances subject to referendum and administrative ordinances not subject to referendum, apart from specific statutory exceptions, is that implicit in the Cuprowski dictum supra. When a municipal governing body has latitude within its discretion in adopting the specific provisions of an ordinance, its enactment is legislative and subject to referendum, even though its authority to legislate on that subject has been delegated to it by State law. When a municipal governing body is merely complying with and putting into execution a State or local legislative mandate in adopting an ordinance, in effect exercising a ministerial function, its enactment is administrative and not subject to referendum.
On the appeal before us, the number of fire captains in the Union City fire department is not ...