December 6, 2007
RAYMOND SCHILLINGER, ALICE SCHILLINGER AND ANNE H. PHILLIPS, PLAINTIFFS-APPELLANTS,
CITY OF BRIGANTINE, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-5080-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: November 8, 2007
Before Judges Cuff, Lihotz and Simonelli.
Plaintiffs challenge the proposed acquisition by defendant City of Brigantine (the City) of property owned by a Roman Catholic parish. They assert that the municipal action is arbitrary, capricious and unreasonable because several members of the governing body profess the Catholic faith and are members of the parish, and the determination to acquire the property is unsupported by a record determining the need and appropriate price for the parcel. Judge Valerie Armstrong granted the City's motion for summary judgment and denied plaintiffs' motion for reconsideration. Plaintiffs appeal raising similar issues before this court as before the Law Division.*fn1
On August 31, 2005, plaintiffs filed a complaint in lieu of prerogative writs seeking a declaratory judgment that any contract between the City and St. Thomas Roman Catholic Church (Church) to acquire the tract known as the St. Philip's Tract (Tract) was null and void. They implicitly asserted that the agreed purchase price of the Tract was inflated and any payment by the City in excess of its fair market value violated the constitutional prohibition of the use of public money for private purposes. N.J. Const. art. VIII, § 3, ¶ 3. Plaintiffs also alleged that the July 20, 2005 resolution adopted by voice vote of the governing body was tainted by conflict of interest due to membership in the parish of several members of the governing body.
The City Council is the governing body of the City. The council consists of the mayor and six other council members. Six of the members of the City Council are Catholic. Three attend mass at the Church. One of the three, Councilman Murray, is a member of the finance committee of the Church. The seventh member of the council attends the Presbyterian church.
It is undisputed that at the time the complaint was filed the resolution approving the acquisition of the Tract was adopted by voice vote. It is also undisputed that following adoption of the resolution approving acquisition of the Tract, the City obtained an appraisal of the property. Thereafter, a contract for the purchase of the property was prepared and executed by the Church but not executed by the City. An ordinance authorizing the purchase of the Tract was introduced pending resolution of the Law Division action and was subsequently adopted prior to plaintiffs' initiation of this appeal. Applications for funds from the County/Municipal Open Space Partnership Program and the State Department of Environmental Protection Green Acres program were submitted by the City, but Councilman Murray, a member of the Finance Committee of the Church, abstained from both resolutions endorsing those applications.
Referring specifically to N.J.S.A. 40A:9-22.5(d), Judge Armstrong found that the faith professed by six of the members of the City Council and the attendance at the Church by three of the six council members did not establish a potential for a conflict of interest. N.J.S.A. 40A:9-22.5(d) bars a local government officer, such as a member of the city council, from acting in his official capacity in any matter "that might reasonably be expected to impair his objectivity or independence of judgment." The judge found that plaintiffs failed to present any facts that established that the council members "have a direct or indirect financial or personal involvement that might reasonably be expected to impair their objectivity or independence of judgment."
Judge Armstrong noted that at most plaintiffs speculated that the receipt of the purchase price might allow the parish to solicit less funds from parishioners and that the parish may use the funds to upgrade their facilities. The judge noted, however, that N.J.S.A. 40A:9-22.5(i) expressly rules out the existence of a conflict when a local government official is a member of a group that may benefit from local government action when the local government official derives no gain to a greater extent than any other member of the group. According to the undisputed facts of this case, Judge Armstrong held that "it is clear that 'no material or monetary gain' would accrue to the Council members as parishioners of [the Church] to any greater extent than any gain could reasonably be expected to accrue to any other parishioner of the Church." Thus, Judge Armstrong found that six members of the council who professed the Catholic faith and the three members who worshipped at the Church were "not in a position of conflict when they voted to approve the [Resolution]."
Judge Armstrong also held that plaintiffs failed to overcome the presumption of validity of the municipal action. She held that the City observed the appropriate public process before acquiring the Tract. Plaintiffs' disagreement with the decision does not carry its heavy burden to overcome the validity of the municipal action.
Having carefully examined the briefs submitted by the parties and the record in its entirety, we agree that the City was entitled to summary judgment, that plaintiffs' complaint was properly dismissed, and that plaintiffs' motion for reconsideration was properly denied. We affirm substantially for the reasons expressed by Judge Armstrong in her thorough and well-reasoned written opinion dated July 11, 2006, as well as her September 15, 2006 oral opinion.