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Miller v. Mitchell

Decided: January 15, 1991.


On appeal from the Superior Court, Law Division, Union County.

King, Long and Stern. The opinion of the court was delivered by Stern, J.A.D.


This appeal requires us to resolve a conflict between the provisions of a municipal charter, enacted as special legislation pursuant to N.J.S.A. Const. (1947), Art. IV, § 7, par. 10, and the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -129. The specific conflict concerns whether the defendant, Mayor of the City of Plainfield, can appoint Class IV members of the Plainfield Planning Board without the advice and consent of the Plainfield City Council. In the Law Division, Judge Alexander Menza concluded that the provisions of the charter controlled in these circumstances. We agree and affirm.

The City of Plainfield in Union County, "though distinctly urban is still primarily residential" and has a population of approximately 45,500. Westergaard, New Jersey -- A Guide to the State, Rutgers University Press (1987) at 283. Pursuant to the provisions of N.J.S.A. Const. (1947), Art IV, § 7, par. 10, and its implementing legislation, N.J.S.A. 1:6-10 to -20, the governing body of the City petitioned the Legislature for the passage of a proposed charter as special legislation. In July, 1968 the petition was approved by more than two-thirds of each house of the Legislature. The petition was also approved by "the legal voters" of the municipality. See N.J.S.A. 1:6-16 to -18. The Charter took effect on January 1, 1969.

According to Pane, 34 N.J.Practice, Local Government Law, § 115 at 70 (1987):

A handful of municipalities still are organized, at least in part, on the basis of old special charters granted specifically to them by the Legislature prior to the 1875 constitutional amendment requiring a general law approach to local government legislation. In many cases, the original provisions of the special charters have been modified by subsequent amendments or by general law. Five places are known to be involved -- Egg Harbor City, Beverly, Burlington City, Woodbury, and Salem -- including 0.5% of the State's estimated 1982 population as of January 1, 1984.

In addition, since the State revised its constitution in 1947, it has been possible again for individual communities to obtain a unique form of government through the enactment of a law providing them with their own special charter. Although slow to gain attention, this new special charter approach has become increasingly popular in recent years, with 10 places, as of January 1,

1984, having special charters enacted since 1947. Collectively, they include another 3.7% of New Jersey's estimated 1982 population.

The constitutional provision governing enactment of special municipal charters, N.J.S.A. Const. (1947), Art. IV, § 7, par. 10, provides:

Private, special or local laws; municipalities and counties

Upon petition by the governing body of any municipal corporation formed for local government, or of any county, and by vote of two-thirds of all the members of each house, the Legislature may pass private, special or local laws regulating the internal affairs of the municipality or county. The petition shall be authorized in a manner to be prescribed by general law and shall specify the general nature of the law sought to be passed. Such law shall become operative only if it is adopted by ordinance of the governing body of the municipality or county or by vote of the legally qualified voters thereof. The Legislature shall prescribe in such law or by general law the method of adopting such law, and the manner in which the ordinance of adoption may be enacted or the vote taken, as the case may be.

The Charter establishes a Mayor-Council-Administrator form of government.*fn1 It provides in § 3.5(a) that non-elected municipal officials are generally to be appointed by the Mayor with the advice and consent of the Council.*fn2 Section 4.8 specifically provides:

Whenever any statute applicable to the city authorizes the appointment of the members of any board, commission, authority or other body for municipal purposes within the city, except for the board of education, the power of appointment, notwithstanding any provision to the contrary in any such statute, shall be exercised by the mayor with the advice and consent of the council.

The present dispute arose when the present Mayor, after assuming office in January, 1990, sought to appoint two Class IV Planning Board members, a replacement for a third member and two alternate members, without the advice and consent of the Council. Counsel for the Planning Board rendered an

opinion agreeing with the Mayor's position that the MLUL did not require such consent and that the MLUL controlled.*fn3 Subsequently, plaintiffs, three members of the City Council, filed a verified complaint in lieu of prerogative writs challenging the appointments in the absence of the Council's advice and consent. Judge Menza concluded that the Legislature did not intend to amend the Charter by its subsequent adoption of the MLUL and that the Charter's requirement for advice and consent by the Council controlled. The resulting final judgment enjoined the Mayor from appointing Class IV ...

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