[213 NJSuper Page 317] The dispute in this case evolves from the recent amendment of the Optional Municipal Charter Law, commonly known as the Faulkner Act. The issue presented is who has the authority in a municipality functioning under the Faulkner Act to appoint members to the board of adjustment.
Defendant mayor asserts that Chapter 374 of the Laws of 1985 amends the Faulkner Act to vest appointment authority in the mayor subject to the advice and consent of the township council. Plaintiff contends that the amendment does not affect the provisions of the Municipal Land Use Law, specifically N.J.S.A. 40:55D-69, which gives the "governing body" the right to determine by ordinance the method of appointment of board of adjustment members. The Municipal Land Use Law defines the term "governing body" to mean "the chief legislative body." N.J.S.A. 40:55D-4.
Chapter 374 of the Laws of 1985 makes several changes to the Optional Municipal Charter Law. N.J.S.A. 40:69A-1 et seq. The legislative history reveals that while the bill was amended several times before it became law, a central theme underlying each draft was the clarification of the separation of powers between the executive and legislative branches within this form of government. Thus, § 1 of Chapter 374 provides in part:
For the purpose of the construction of all other applicable statutes, unless the explicit terms and context of the statute require a contrary construction, any administrative or executive functions assigned by general law to the governing body shall be exercised by the mayor, and any legislative and investigative functions assigned by general law to the governing body shall be exercised by the council. . . .
General law is defined by the Faulkner Act in N.J.S.A. 40:69A-28 as follows:
For the purposes of this act, a "general law" shall be deemed to be any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities, . . . .
The mayor sought to exercise appointment authority over the board of adjustment members based on the amended language of N.J.S.A. 40:69A-43(f). Before amendment that section read:
Whenever in any city of the first class having a population of more than 250,000 the governing body is authorized by any provision of general law to appoint the members of any board, authority or commission, such power of appointment shall be deemed to vest in the mayor with the advice and consent of the council.
Section 6 of Chapter 374 amended that section to read:
Whenever the governing body is authorized by any provision of general law to appoint the members of any board, authority or commission, such power of
appointment shall be deemed to vest in the mayor with the advice and consent of the council, unless the specific terms of that general law clearly require a different appointment procedure, or appointment by ...