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Citizens For Strathmere & Whale Beach v. Township Committee of the Township of Upper

August 1, 2012

CITIZENS FOR STRATHMERE & WHALE BEACH, PLAINTIFF-APPELLANT,
v.
TOWNSHIP COMMITTEE OF THE TOWNSHIP OF UPPER, THE TOWNSHIP OF UPPER AND THE UPPER TOWNSHIP PLANNING BOARD, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-0432-09.*fn1

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 21, 2012

Before Judges Cuff, Lihotz and St. John.

Plaintiff, Citizens For Strathmere & Whale Beach appeals from an October 25, 2010 trial court order granting the motion filed by defendants the Township of Upper (the Township), the Township Committee of the Township of Upper (the Committee), and the Upper Township Planning Board (Planning Board) for summary judgment, and dismissing plaintiff's complaint for deannexation with prejudice. After reviewing the record in light of the arguments advanced on appeal, we determine the trial court's conclusions were correct and should be affirmed.

I.

Plaintiff is a not-for-profit community organization comprised of residents and property owners of Strathmere and Whale Beach. The geographic area that is the subject of the litigation is located in the Township. The sections of the Township referred to as Strathmere and Whale Beach (collectively, Strathmere) are located on a portion of Ludlam Island, a coastal barrier island in Cape May County. The Township is on the mainland and not contiguous to Strathmere.

Plaintiff sought to deannex Strathmere from the Township in order to annex it to Sea Isle City, its contiguous neighboring municipality occupying the remainder of Ludlum Island.

In 2007, plaintiff petitioned the Committee for deannexation pursuant to N.J.S.A. 40A:7-12 (the statute).*fn2 The Committee held a special meeting to consider plaintiff's petition. At the conclusion of the meeting, the Committee, without referring the matter to the Planning Board as required upon acceptance of a properly prepared written petition, adopted a resolution denying plaintiff's request to initiate the deannexation process due to its failure to meet the statute's requirements, On October 2, 2007, plaintiff filed its complaint, requesting injunctive relief to require that the Committee submit the petition to the Planning Board. By order dated October 18, 2007, the motion judge denied plaintiff's request for injunctive relief; dismissed the complaint with prejudice; and affirmed the Committee's decision rejecting plaintiff's petition.

On November 27, 2007, plaintiff submitted an amended petition for deannexation, which was accepted by the Committee.

While the statute requires a minimum of 60% of the registered voters in Strathmere sign the petition, plaintiff's petition was signed by nearly 90% of Strathmere's voters. Pursuant to the statute, the Committee referred the petition to the Planning Board to "report to the governing body on the impact of the annexation upon the municipality."

The Planning Board conducted eighteen public meetings between February 2008 and April 2009. The hearing testimony centered on Strathmere's residents' complaints about the lack of adequate municipal services provided by the Township, compared to the perceived superior services provided by Sea Isle City to its citizens.

The Township's experts testified regarding the fiscal effect of Strathmere's deannexation upon the municipality. The Township's auditor, Leon Costello explained that, because of energy funds received from hosting an electric generating plant, the Township was the only municipality in Cape May County that did not have a tax used to fund the municipal operations, known as a local purpose tax. Costello opined that deannexation would result in approximately $400,000 in annual savings to the Township from its reduction in services to Strathmere. However, removing Strathmere's ratable property of $393,461,300 would reduce the Township's bonding capacity of approximately $70 - $80 million to approximately $60 million. Costello also explained that the Township had issued only two multi-million dollar bonds in the past, the proceeds of which were used for beach restoration.

Other witnesses testified that children in the Township attended four different schools in two separate municipalities. Students in the lower grades went to Township schools, and high school students went to Ocean City's high school. As of 2007, the Township had 2388 students, and only four were from Strathmere. Nevertheless, the Township received nearly $4 million per year in school tax revenue directly from Strathmere's residents. Deannexation would cause a 20-cent increase in the Township's school tax rate, resulting in the ...


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