Superior Court of New Jersey, Law Division, Salem County
Approved for Publication May 12, 2014.
Adam I. Telsey for plaintiff ( Puma, Telsey & Rhea, P.A., attorneys).
Michael M. Mulligan for defendant.
[436 N.J.Super. 19] CURIO, A.J.S.C.
Plaintiff has filed an action in lieu of prerogative writs seeking an order invalidating the Salem County Freeholder Board's (the " Board" ) partial veto of the November 25, 2013, meeting minutes of the Salem County Improvement Authority (" SCIA" ).
On November 25, 2013, the SCIA awarded professional services contracts for the year 2014. SCIA voted unanimously on the resolutions to hire multiple professionals, including an engineer, solicitor, financial advisor, bond counsel, economic development consultant, and others; they voted three-to-one on the resolution to hire an auditor. Freeholder director Julie Acton and deputy director Dale Cross were in attendance at SCIA's November 25, 2013, meeting at which the contracts in dispute were awarded. During public comment, Acton inquired as to the timing for awarding the contracts. Cross had made the same inquiry the previous year, suggesting that such contracts should be awarded at SCIA's reorganization meeting in February.
The November 25, 2013, SCIA meeting minutes were delivered to the clerk of the Freeholder Board on December 2, 2013, in the same manner and within the same time frame as prior meeting [436 N.J.Super. 20] minutes had been submitted for consideration pursuant to N.J.S.A. 40:37A-50(e). The meeting minutes were then hand-delivered to the freeholders on December 3, 2013. On December 4, 2013, Acton, in writing, vetoed " all SCIA resolutions for professional services appointments to terms spanning past December 31, 2013." At the December 4, 2013, Board meeting, that veto was approved by majority vote and memorialized by Resolution 558.
N.J.S.A. 40:37A-50(e) provides:
The minutes of every meeting of an authority . . . shall be delivered by the end of the fifth business day following the meeting, by and under the certification
of the secretary of the authority to each member of the county board of freeholders. No action taken at a meeting by the members of an authority shall be effective if within 10 days after the copy of the minutes shall have been delivered to each member of the board of freeholders, such action is vetoed by the director of the board of freeholders, with the concurrence of a majority of the members of the board of freeholders. If, within the 10-day period, the board of freeholders returns to the authority the copy of the minutes with a veto of any action taken by the authority or any of the authority's members thereof at a meeting, that action shall be of no effect. If the director takes no action with respect to the minutes within the 10-day period, the minutes shall be deemed to be approved . . . .
The veto power accorded under this subsection shall not affect in any way the covenants contained in the bond indentures of the authority, or any collective bargaining agreement or binding arbitration decisions affecting employees of the authority.
Despite defendant's argument that it is only the action of Acton that is before the court for review, it is the action of the Board in confirming the director's veto that gives the veto its effect and renders the authority action to " be of no effect." Accordingly, the court here also reviews the action of the Board in confirming the veto.
The standard and burden that a plaintiff must overcome in an action in lieu of prerogative writs is substantial. When a reviewing court considers an appeal of an action taken by a governing body, the standard by which it is guided is whether the action taken was arbitrary, capricious, or unreasonable. Cell S. of N.J. v. Zoning Bd. of Adj., 172 N.J. 75, 81-82, 796 A.2d 247 (2002); [436 N.J.Super. 21] Burbridge v. Mine Hill Twp., 117 N.J. 376, 385, 568 A.2d 527 (1990). The determinations made by the Board are presumed valid as is the exercise of its decision-making, based upon its factual determinations, and will not be overturned unless they are arbitrary, capricious, or unreasonable. Plaintiff bears this burden of proof. Cell, supra, 172 N.J. at 82, 796 A.2d 247.
Judicial review is intended to be a determination of the validity of the agency's action, not the substitution of the court's judgment for that of the agency. Ne. Towers, Inc. v. Zoning Bd. of Adj., 327 N.J.Super. 476, 493, 744 A.2d 190 (App. Div. 2000). The reviewing court must determine whether the board below followed the statutory guidelines and properly exercised its discretion within those guidelines or whether its decision amounts to an abuse of discretion. Burbridge, supra, 117 N.J. at 398, 568 A.2d 527. However, while a court is to " give substantial deference to findings of fact, it is essential that the board's actions be grounded in evidence in the record." Fallone Prop., L.L.C. v. Bethlehem Twp. Planning Bd., 369 N.J.Super. 552, 562, 849 A.2d 1117 (App. Div. 2004). The Appellate Division has emphasized that " [a] determination predicated on unsupported findings is the essence of arbitrary and capricious action." DeFalco Instant Towing, Inc. v. Borough of New Providence, 380 N.J.Super. 152, 158, 881 A.2d 745 (2005) ( quoting Bryant v. City of A. City, 309 N.J.Super. 596, 610, 707 A.2d 1072 (App. Div. 1998)).
Since there is a presumption of validity of a local action, SCIA bears the burden of demonstrating the existence of a " clear abuse of discretion." Cell, supra, 172 N.J. at 81-82, 796 A.2d 247. The issue becomes whether the decision of the governing body is supported by the record ...