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Fair Share Housing Center, Inc. v. New Jersey State League of Municipalities

May 26, 2010


On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1487-08.

The opinion of the court was delivered by: Skillman, P.J.A.D.



Argued March 16, 2010

Before Judges Skillman, Gilroy and Simonelli.

The issue presented by this appeal is whether the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 to -13, requires the State League of Municipalities to provide public access to any non-privileged document generated in the course of the League's operations. We conclude that the League is not subject to OPRA.

Municipalities are authorized by statute to join in an organization of municipalities. N.J.S.A. 40:48-22 provides that "[a]ny municipality . . . may join with any other municipality or municipalities in the formation of an organization of municipalities, for the purpose of securing concerted action in behalf of such measures as the organization shall determine to be in the common interest of the organizing municipalities[.]" See also N.J.S.A. 40:48-23.

However, the League was not formed by statute but rather by action of its original members, who established a nonprofit, unincorporated association and adopted a constitution to govern its operations. The League's objectives, as described in that constitution, include:

(1) The promotion of the general welfare of the municipalities of this State; (2) The improvement of municipal administration in its several branches; (3) The maintenance of a central office to serve as a clearing house of information relating to the functions of municipal government; (4) The fostering of scientific studies of municipal government by educational institutions and the publication and distribution of reports based on such research and study; (5) The publication and circulation of an official League magazine; (6) The study and advocacy of necessary and beneficial legislation affecting municipalities and the opposition of legislation detrimental thereto; (7) The holding of an annual conference and special meeting for the discussion and study of current municipal problems and the techniques involved in their solution and the sponsoring of training courses by the League and State University; (8) The providing of means whereby officials may interchange ideas and experiences and obtain expert advice[.]

In accordance with this statement of objectives, the League pools information and resources for its members, publishes a magazine that reports on a variety of issues affecting municipal government, conducts educational programs for municipal officials, provides legislative analysis and legislative bulletins to its members, and maintains a library of municipal ordinances. The League's officers also testify at legislative hearings on a variety of issues of interest to municipal government and sometimes participate as a party or amicus curiae in litigation affecting municipalities generally.

No municipality is required to join the League. Nevertheless, every municipality in the State is currently a member.

Approximately 16% of the League's revenue is derived from dues assessed upon its members according to population. The rest of its revenue is obtained from a variety of other sources including the League's annual convention.

The issue of the right of public access to documents in the League's possession was spawned by the League's expression of opposition to the revised "Third Round" rules of the Council on Affordable Housing (COAH) relating to the calculation and satisfaction of the need for affordable housing, which COAH proposed following our remand in In re Adoption of N.J.A.C. 5:94 & 5:95 by Council on Affordable Housing, 390 N.J. Super. 1 (App. Div.), certif. denied, 192 N.J. 71, 72 (2007). In that opposition, the League asserted that adoption of the proposed rules would result in the imposition of substantial additional tax burdens upon the owners of real property. Plaintiff Fair Share Housing Center, a public interest organization that acts as an advocate for affordable housing policies, sent a letter to the League requesting production of any studies or other documents supporting this assertion as well as any letters or emails relating to the Third Round rules received by the League. ...

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