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Scannapieco v. Abate

Decided: May 11, 1992.

MATTHEW V. SCANNAPIECO, MAYOR OF THE TOWNSHIP OF MARLBORO, PLAINTIFF,
v.
FRANK G. ABATE, DEFENDANT



Milberg, A.j.s.c.

Milberg

MILBERG, A.J.S.C.

Matthew Scannapieco in his capacity as Mayor of the Township of Marlboro, Monmouth County (hereinafter referred to as Scannapieco) brings this action in lieu of prerogative writs for declaratory relief. He seeks a declaration that the appointment of the defendant, Frank G. Abate (hereinafter referred to as Abate) as a Class IV member of the Planning Board under N.J.S.A. 40:55D-23(a) is void ab initio and a declaration that a Class IV member of a township planning board cannot serve simultaneously as a member of a regional utility authority. The Marlboro Township Planning Board (hereinafter referred to as "The Planning Board") was granted leave to intervene. I hold that the appointment of Abate as a Class IV member of the Planning Board is valid. I further hold that a Class IV member of a planning board cannot serve simultaneously as a member of a regional utility authority serving the township.

The facts are not in dispute. On December 11, 1991, nineteen days prior to the end of his term, Saul G. Hornik then Mayor of the Township of Marlboro, appointed Abate, who at that time was a Councilman in the Township of Marlboro, as a Class IV member of the Planning Board pursuant to N.J.S.A. 40:55D-23(a), the appointment to become effective upon his resignation as a member of the Council. Abate was to complete the term of Sam Rein whose term was to end on December 31, 1992. On December 30, 1991 Abate resigned as Councilman and thereafter on December 30, 1991 took the oath of office and assumed the position of Class IV member of the Planning Board. On

January 23, 1992, Abate was appointed by a majority of the Township Council to the Western Monmouth Utility Authority, a regional utility authority for a five year term, beginning February 1, 1992 and expiring on January 31, 1997. This litigation then ensued.

Abate and the Planning Board initially argue that the complaint should be dismissed for the following reasons:

1. Scannapieco lacks standing since he brings this suit in his capacity as Mayor and not as a citizen and taxpayer of the township.

2. The action was not brought within the time period set forth in R. 4:69-6.

3. That Scannapieco failed to exhaust his administrative remedies required under R. 4:69-5.

Scannapieco concedes that he filed this action in his official capacity as Mayor to protect the integrity of the process, that is, the appointment of a Class IV member to the Planning Board. He further contends that this action was brought within time since the court may enlarge the time period set forth in R. 4:69-6. Lastly, he contends he does not seek to remove an official from office. He seeks a declaratory judgment involving a question of law and, therefore, he is not required to exhaust his administrative remedies.

In support of the defendant's argument, Abate and the Planning Board rely on Demoura v. Newark, 74 N.J. Super. 49, 180 A.2d 513 (App.Div.1962). In Demoura the plaintiff in a multi-count complaint challenged among other things, that the budget of the City of Newark was null and void, that numerous officials and employees of the City of Newark were holding offices improperly and illegally and that the City of Newark was making improper and illegal appropriations and payments of salaries. The court held that a proceeding in the nature of quo warranto involving a municipal office or position should be brought by a citizen and taxpayer of the municipality unless the plaintiff is a claimant of the office. The facts in Demoura are distinguishable from this action. The court specifically found that the plaintiff was not a taxpayer in the City of Newark and that the action was not brought out of any concern for the

general public but was purely a private strike action. Here it is obvious that Scannapieco the Mayor of the town is a taxpayer and citizen of the town. Furthermore, Scannapieco is not seeking the removal of a municipal official. He seeks as a mayor of a municipality a declaratory judgment as to whether a specific appointment to the Planning Board is valid.

R. 4:69-6(a) provides that an action in lieu of prerogative writs should be brought within forty five days. R. 4:69-6(c) provides that the court may increase the period of time provided in R. 4:69-6(a) where it is manifest that the interest of Justice so requires.

I find that Scannapieco has standing to file this action. I also find that pursuant to R. 4:69-6(a) the period of time within which to file the action should be enlarged since the question presented to this court involves an important public, rather than private interest, which requires adjudication and clarification. I further find that this is a declaratory judgment action involving questions of law and not a review of an administrative action which requires Scannapieco to exhaust his administrative remedies.

N.J.S.A. 40:55D-23(a) provides for the creation of a municipal planning board. The statute provides that the membership of a planning board consist of four classes. Class I, Class II and Class III provide for the appointment of certain municipal officials to be members of a planning board. Class IV members, however, are ...


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