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Barbera v. Rapach

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 30, 2008

ARTHUR BARBERA, CHARLES B. HOLLOWELL, JOHN MANGANIELLO, JEFFREY GARRIGAN, AND LOUISA GROSSMAN, PLAINTIFFS-RESPONDENTS,
v.
PATRICIA RAPACH, CLERK, TOWNSHIP OF BERKELEY HEIGHTS, DEFENDANT-RESPONDENT, AND THOMAS FOREGGER AND CAROL MATULA,*FN1 DEFENDANTS/INTERVENORS-APPELLANTS.

On appeal from Superior Court of New Jersey, Law Division, Union County, Docket Nos. L-4122-07 and L-1064-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued December 2, 2008

Before Judges Skillman and Graves.

Intervenors Thomas Foregger and Carol Matula appeal from an order dated February 1, 2008. Plaintiffs and defendant, however, have elected not to participate in this appeal. Because the order appealed from has been rendered moot by subsequent developments, the appeal is dismissed.

The pertinent facts are essentially undisputed. In September 2007, the governing body of the Township of Berkeley Heights (the Township) enacted a ten million dollar bond ordinance (Ordinance 16-07) that was intended to fund various improvements in the Township, including the construction of an 8.6 million dollar community center. Intervenors opposed the ordinance and, pursuant to N.J.S.A. 40:49-27, they filed petitions with the Township clerk to compel a public referendum on Ordinance 16-07. On October 18, 2007, defendant Patricia A. Rapach, Clerk of the Township, certified the petitions were "signed by the requisite number of qualified voters." N.J.S.A. 40:49-27b.

On December 3, 2007, plaintiffs (five residents of the Township who supported Ordinance 16-07) filed a complaint in lieu of prerogative writ seeking to invalidate the petitions, which challenged the bond ordinance. Subsequently, on January 28, 2008, the court ruled that some of the petitions failed to comply with N.J.S.A. 40:49-27a. Therefore, the court entered an order on February 1, 2008, directing that the bond ordinance was not to be placed "on the ballot for a special election or at the next general election based on the petitions received to date." In addition, the order instructed Rapach "to return the petitions to the party or parties filing them" in accordance with N.J.S.A. 40:49-27b. Intervenors filed this appeal from the February 1, 2008 order.

In addition, on February 8, 2008, intervenors amended the petitions and resubmitted them to the Township clerk as permitted by N.J.S.A. 40:49-27b. Once again, the petitions were examined by the clerk and found to be sufficient, and, once again, plaintiffs filed a complaint seeking to invalidate the petitions. In a written decision on June 12, 2008, the court found that the Township clerk "did not abuse her discretion by accepting the signatures and certifying the petitions," and the court entered an order denying plaintiffs' request for relief.

As a result, a referendum on the ordinance was held on November 4, 2008, and the ordinance was defeated. See Mike Neavill, Perna and Bruno win; Rec Center defeated, Independent Press, November 11, 2008.*fn2

Intervenors argue on appeal that the court erred when it entered an order invalidating several petitions on February 1, 2008. Those petitions, however, were subsequently amended and accepted by the Township clerk and the court. Moreover, because Ordinance 16-07 was ultimately defeated at a referendum election, there is no viable issue on appeal. See Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004) ("Our courts generally will not decide a case if the issues are hypothetical, a judgment cannot grant effective relief, or there is no concrete adversity of interest between the parties."); Cinque v. N.J. Dept. of Corrections, 261 N.J. Super. 242, 243 (App. Div. 1993) ("It is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed.").

The appeal is dismissed.


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