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Bay Beach Way Realignment Committee, L.L.C. v. Township Council of the Township of Toms River

July 9, 2009

BAY BEACH WAY REALIGNMENT COMMITTEE, L.L.C., FRANKLIN A. MICHENFELDER, RICHARD DAVIS, BARBARA DAVIS, EILEEN VAYDA, CAROL FORKE, ELIZABETH MAGORY, MARGARET FINTER, GAIL ZAWACKI, CHRISTIAN MAGORY, DAVID A. FINTER, DANIEL RUSSELL, MAUREEN RUSSELL, JOHN VAYDA, NANCY MICHENFELDER, CARL DECKERT, MARILYN DECKERT, FLORENCE KRUEGER, ROSE HENNION, RALPH HENNION, WAYNE R. EITNER, GLENN JORGENSEN, ELIZABETH JORGENSEN, GABRIEL CURTIS, ELAINE K. DIEGMANN, JAMES F. SMITH AND MARGUERITE SMITH, PLAINTIFFS-RESPONDENTS,
v.
TOWNSHIP COUNCIL OF THE TOWNSHIP OF TOMS RIVER AND THE TOWNSHIP OF TOMS RIVER, DEFENDANTS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2198-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 10, 2009

Before Judges Wefing, Parker and LeWinn.

Defendant Township Council of the Township of Toms River (Council) appeals from an order entered on July 15, 2008 granting summary judgment in favor of plaintiffs allowing deannexation of Bay Beach Way pursuant to N.J.S.A. 40A:7-12 and ordering the Council to consent to plaintiff's petition for deannexation within thirty days.

Plaintiff Bay Beach Way Realignment Committee (Committee)*fn1 is comprised of Toms River Township (Toms River) residents who own lots on Bay Beach Way, which is located between Route 35 and Barnegat Bay. Bay Beach Way is a private road consisting of nine acres or approximately .0003% of Toms River's 26,590.25 acres. It is referred to as the Ocean Beach section of Toms River or the Barrier Island.

Plaintiffs originally filed a petition seeking deannexation from Toms River and annexation to the adjacent Borough of Lavallette (Lavallette) in October 2006. The petition was referred to the Toms River Planning Board (Board), which conducted two hearings in December 2006 and January 2007, during which it heard testimony from plaintiffs and the township planner. A public hearing was conducted by the Council on April 10, 2007. On May 8, 2007, the Council adopted a resolution denying its consent to the deannexation.

During the hearings, the evidence demonstrated that the residents of Bay Beach Way could not leave their street without traveling through Lavallette. The residents testified that if the Toms River border were moved one block north, the people living on that block would not have to go through Lavallette to reach the mainland section of Toms River as the residents of Bay Beach Way must do.

Plaintiffs testified that a February 2003 snowstorm gave rise to their petition. The road was not plowed, the residents lost power and were snowed in for three days. Plaintiffs further testified that because their mailing address is Lavallette, they often have difficulty using facilities in Toms River. Moreover, the residents of Bay Beach Way are provided with water, electric and cable service through Lavallette, and those service providers differ from those for the mainland section of Toms River.

Plaintiffs indicated that they were "very involved" in Lavallette community activities because of their proximity to the borough. There was also evidence of the tax consequences for the residents of Bay Beach Way if they were annexed to Lavallette, rather than Toms River. The example given was a house assessed at $380,000 in Toms River and taxed at $12,000 would, by comparison, be assessed at true value of $930,000 in Lavallette with a tax bill of $7,012. Plaintiffs testified, however, that the tax consequences were not the sole reason for seeking deannexation.

The township planner testified that losing the sixty parcels of property on Bay Beach Way would not have a significant impact on the master plan for Toms River. The planner indicated that while the population of Toms River could potentially grow by twenty percent in the next ten years, there was no growth potential for Bay Beach Way because it is fully developed.

After the public hearings, the Council denied plaintiffs' petition, concluding that deannexation would result in a loss of revenue with no savings and that plaintiffs had not demonstrated that deannexation would be in the best interests of Toms River. Plaintiffs filed a complaint in lieu of prerogative writs in the Law Division seeking to compel the Council to consent to deannexation. Plaintiffs ultimately moved for summary judgment.

The Law Division found that the geographic and demographic features of Bay Beach Way were legitimate considerations, that the road was fully developed and that the only access to it was through Lavallette. The court concluded that the record supports a finding that Toms River will not incur any loss of recreational areas, historic sites, open space or other amenities currently available or utilized by other township residents. Toms River would, however, incur a loss of $12 million ...


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