On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-418-07.
The opinion of the court was delivered by: Carchman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Sabatino and Simonelli.
Defendants, Washington Township (Mercer County) Division of Fire, Mayor David Fried, Township Administrator Mary Caffrey, President of the Township Council Sonja Walter, Township Council Vice-President David Boyne, Council members Ronda Hyams and William Lesniak, Fire Chief Kevin Brink, Township Evaluation Committee Members Marty Masseroni, Cliff Lucido and Chuck Petty, and Michael McGowan appeal from a judgment of the Law Division ordering the reinstatement of plaintiff David Horsnall, a Captain in the former Washington Township Fire District, to the position of Captain in the newly-created Washington Township*fn1 Division of Fire. We affirm and conclude that the creation of the Division of Fire to replace a previously existing Fire District does not eliminate a Fire District fireman's statutory tenure protections, N.J.S.A. 40A:14-19 and N.J.S.A. 40A:14-25. On plaintiff's cross-appeal, we affirm the denial of counsel fees.
These are the relevant facts informing our opinion. In 2006, the Township determined that it would replace its Fire District and create the Division of Fire. To implement the change, the Township, on June 22, 2006, and pursuant to N.J.S.A. 40A:14-91, adopted Resolution 2006-105, which set forth the time and a date, July 27, 2006, for a hearing on an application to dissolve the Township's Fire District.
Thereafter, on July 27, 2006, the Township Council adopted Resolution 2006-155, authorizing the dissolution of the Fire District and applying to the Local Finance Board of the Department of County Affairs, pursuant to N.J.S.A. 40A:5A-20, to create the Division of Fire within the Township's Department of Public Safety. That action was followed by the Local Finance Board adopting a resolution approving the dissolution of the Fire District.
One of the critical issues of concern was the status of the Fire District employees under the new proposal. That question was answered when Caffrey, the Township Business Administrator, sent packets to all Fire District employees with applications for employment with the Division of Fire, including notification that the current employees of the Fire District needed to apply for employment with the Township to serve in the Division. The packet established a November deadline for applications as well as interviews.
Plaintiff filed a timely application, and on November 28, 2006, Caffrey wrote to plaintiff that the Evaluation Committee had considered his application. Caffrey then advised plaintiff that based on the Committee's recommendation, she could not extend an offer of employment. She told plaintiff that he should not report for the remainder of his scheduled shifts through the end of 2006 but he still would be fully compensated for that period. In addition, since the Division of Fire "[would organize [on] January 1, 2007," he was eligible for COBRA*fn2 on that date.
On November 30, 2006, the Township Council passed, and on December 5, 2006, adopted, Ordinances 2006-40 and 2006-41. Ordinance 2006-40 created the Division of Fire and revised the Township Code. It also provided that upon dissolution of the Fire District, the Township shall assume all fire protection services for the same geographic region previously serviced by the Fire District. Ordinance 2006-41 dissolved the Fire District effective midnight on December 31, 2006, provided that all conditions in the Ordinance were met.
On February 16, 2007, plaintiff filed a five-count complaint in lieu of prerogative writs against defendants alleging: (1) his removal was without just cause and written complaint in violation of N.J.S.A. 40A:14-19; (2) defendants failed to adhere to N.J.S.A. 40A:14-19 and grant plaintiff a hearing which constituted a denial of due process under the United States Constitution and the New Jersey Constitution; (3) the termination of plaintiff's employment violated N.J.S.A. 40A:14-25, because the statute requires termination in inverse order of appointment; (4) defendants' actions in dissolving the Fire District and staffing positions were arbitrary and capricious; and (5) the application for dissolution of the Fire District was deficient pursuant to N.J.S.A. 40A:14-91. Plaintiff sought a variety of relief including reinstatement, back pay, counsel fees and costs.
In lieu of filing an answer, defendants filed a motion to dismiss the complaint. Plaintiff countered with a cross-motion for partial summary judgment. Judge Feinberg granted plaintiff's motion, in part, ordering reinstatement and back pay. She likewise concluded that plaintiff's action was not barred by the forty-five day limitation period of Rule 4:69-6. She later supplemented her opinion and denied counsel fees. The appeal and cross-appeal followed.
We first address the issue of whether plaintiff's cause of action was time-barred. Rule 4:69-6(a) provides: "No action in lieu of prerogative writs shall be commenced later than 45 days after the accrual of the right to the review, hearing or relief claimed, except as provided by paragraph (b) of this rule." Rule 4:69-6(c) provides: "The court may enlarge the period of time provided in paragraph (a) or (b) of this rule where it is manifest that the interest of justice so requires."
Defendants assert that the accrual date for plaintiff's cause of action was November 28, 2006, the date that the Township Administrator notified plaintiff in writing that the Division of Fire would not be offering him employment. The motion judge concluded that the accrual date was January 1, 2007, the date plaintiff's employment ceased due to the dissolution of the Fire District.
Defendants rely on an assessment case, Macleod v. City of Hoboken, 330 N.J. Super. 502 (App. Div. 2000)*fn3, which is easily distinguishable. In Macleod, the plaintiff filed an action in lieu of prerogative writs in the Law Division challenging an added assessment on his condominium as an unconstitutional spot assessment. The judge granted the plaintiff's motion for summary judgment. Ibid. We reversed, stating:
"The right to appeal a real property assessment is statutory, and the appellant is required to comply with all applicable statutory requirements." F.M.C. Stores Co. v. Borough of Morris Plains, 195 N.J. Super. 373, 381 (App. Div. 1984), aff'd, 100 N.J. 418 (1985). See also Hovbilt, Inc. v. Township of Howell, 138 N.J. 598, 603 (1994); City of Newark v. Fischer, 3 N.J. 488, 493 (1950). "N.J.S.A. 54:3-21 provides the process by which appeals of tax assessments are to be taken." In re Appeal of Tp. of Monroe From Determination of Local Finance Bd., 289 N.J. Super. 138, 145 (App. Div. 1995), certif. denied, 144 N.J. 172 (1996). The statutory scheme contemplates a prescribed chain of review for appeal of a tax assessor's actions through the county tax board and the court system, starting with the Tax Court. Ibid. [Id. at 505-06.]
Because the plaintiff did not appeal the assessment by the statutory deadline in N.J.S.A. 54:3-21, or appeal the added assessment by the deadline in N.J.S.A. 54:4-63.11, it was a fatal jurisdictional defect. Macleod, supra, 330 N.J. Super. at 506. We did not overlook the use of an action in lieu of prerogative writs to bypass the statutory bar, but ultimately, we determined that the accrual date for plaintiff's appeal was ...