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Saverino v. Zboyan

Decided: March 13, 1990.

ANGELO SAVERINO, ALAN TAUBENKIMEL, ALBERT GELLER, RAYMOND GUNTHER AND JACK PETTIT, PLAINTIFFS-APPELLANTS,
v.
STEVAN ZBOYAN, IN HIS CAPACITY AS THE MAYOR OF THE TOWNSHIP OF BRICK, AND THE TOWNSHIP OF BRICK, A NEW JERSEY MUNICIPAL CORPORATION, THOMAS STEINBACHER, ROBERT HESLIN, ARTHUR WEBER, JOHN PARADES, CAROL PATETTA AND MARY LOU POWNER, DEFENDANTS-RESPONDENTS



On appeal from the Superior Court of New Jersey, Law Division, Ocean County.

O'Brien, Havey and Stern. The opinion of the court was delivered by Havey, J.A.D.

Havey

The central question raised by this appeal is whether a modification to a municipality's Faulkner Act charter, changing the time of municipal elections from May to November, extinguishes the terms of incumbent Class IV planning board and zoning board members. The trial court concluded that the change in the time of election constituted a "complete and separate form of government," thereby terminating the terms of all appointed officers in the municipality. See N.J.S.A. 40:69A-24 and 207. We disagree. Brick Township's adoption of the "alternative" under N.J.S.A. 40:69A-25.1, which changed the time of election, constituted a modification of an existing optional plan of government, not an adoption of an entirely new optional plan. Therefore, N.J.S.A. 40:69A-207, which abolishes all offices and extinguishes the terms of all elected and appointed officials upon adoption of an optional plan, does not apply. We therefore reverse.

Brick Township is a municipal corporation organized under the Optional Municipal Charter Law of 1950, N.J.S.A. 40:69A-1 et seq. (Faulkner Act). In an election conducted in May 1966, the township adopted a "Mayor-Council Plan B" form of government as then provided by N.J.S.A. 40:69A-49 through 54, now repealed.

In 1981, the Legislature amended the Faulkner Act by eliminating the various sub-plans under the four optional plans of government. See L.1981, c. 465, ยง 44. However, a grandfather clause, N.J.S.A. 40:69A-208.1, permitted continuance of abolished governmental forms adopted by municipalities prior to 1981, such as Brick's Mayor-Council Plan B.

During 1987-1988, a movement was initiated in the township seeking a modification of the charter to provide for partisan elections, rather than non-partisan, to be conducted in November, rather than May. A petition of approximately 2,697 voters was presented to the governing body, which adopted an ordinance presenting the proposed modification to the voters under the initiative and referendum section of the act, N.J.S.A. 40:69A-184. See also N.J.S.A. 40:69A-25.1. At that time, there were 30,366 registered voters in the township. The petition was certified as sufficient by the municipal clerk pursuant to N.J.S.A. 40:69A-187.

In the November 1988 referendum, the voters adopted the modification. Accordingly, the township's charter was amended pursuant to N.J.S.A. 40:69A-25.1 and -34.1 to provide that all future elections were to be held in November, and that governmental reorganization would be held on January 1 next following the election.

In the November 1989 general election, defendant Stevan Zboyan was elected mayor, and four of the incumbent council members were defeated by a new slate of candidates. As of that date, plaintiffs Albert Geller and Raymond Gunther were Class IV planning board members, appointed on July 1, 1986, for four-year terms. See N.J.S.A. 40:55D-23b. Plaintiff Jack Pettit was an alternate planning board member, appointed on July 16, 1988 to fill an unexpired two-year term. See N.J.S.A . 40:55D-23.1. Plaintiff Alan Taubenkimel was a zoning board member, appointed on July 1, 1986 for a four-year term, and plaintiff Angelo Saverino was an alternate member, appointed on July 1, 1988 for a two-year term. See N.J.S.A. 40:55D-69.

Prior to the January 1, 1990 organization meeting, the newly elected mayor and council advised plaintiffs that their terms of office to their respective boards were deemed terminated by virtue of the change in time of election. At the organizational meeting, Zboyan appointed defendants Thomas Steinbacher, Robert Heslin and Arthur Weber to replace plaintiffs Geller,

Gunther and Pettit on the planning board. The newly elected council appointed defendants John Parades, Carol Patetta and Mary Lou Powner as zoning board members to replace Saverino, Taubenkimel, and to fill an existing vacant seat.

On January 3, 1990, plaintiffs filed the present action in lieu of prerogative writs challenging the action taken by the mayor and council. They also sought temporary restraints to enjoin the reorganization of the planning and zoning boards. On January 11, 1990, an order was entered restraining the respective boards from ...


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