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Committee of Petitioners for Repeal of Ordinance No. 522 (2013) of Borough of West Wildwood v. Frederick

Superior Court of New Jersey, Appellate Division

May 15, 2014

COMMITTEE OF PETITIONERS FOR THE REPEAL OF ORDINANCE NUMBER 522 (2013) OF THE BOROUGH OF WEST WILDWOOD, PLAINTIFF--RESPONDENT,
v.
DONNA L. FREDERICK, ACTING MUNICIPAL CLERK OF THE BOROUGH OF WEST WILDWOOD, AND THE BOROUGH OF WEST WILDWOOD, DEFENDANTS--APPELLANTS

Argued: March 19, 2014.

Approved for Publication May 15, 2014.

Page 1271

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket No. L-338-13.

Andrew J. Cafiero argued the cause for appellants ( Cafiero and Balliette, attorneys; Mr. Cafiero and William J. Kaufmann, on the brief).

Paul J. Baldini argued the cause for respondent.

Before Judges SAPP-PETERSON, LIHOTZ and MAVEN.[1] The opinion of the court was delivered by LIHOTZ, J.A.D.

OPINION

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[435 N.J.Super. 555] OPINION

LIHOTZ, J.A.D.

In May 2013, defendant the Borough of West Wildwood (Borough) passed an ordinance authorizing the issuance of bonds to finance various capital improvements. Following publication of the ordinance, plaintiff, the Committee of Petitioners for the Repeal of Ordinance No. 522 (2013) of the Borough of West Wildwood, sought repeal of the ordinance via referendum. Petitioning [435 N.J.Super. 556] Borough voters, plaintiff procured sixty-two signatures and submitted the petition to defendant Donna L. Frederick, Acting Municipal Clerk of the Borough. Frederick rejected the petition, identifying specific notarial defects and explaining plaintiff failed to comply with the applicable statute, which mandated names and addresses of five committee members be affixed to the petition when circulated. Plaintiff resubmitted the petition after correcting the noted deficiencies; however, Frederick again returned the petition stating

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the corrections were insufficient to cure the defects.

Plaintiff filed a complaint in lieu of prerogative writs, demanding presentation of the referendum to voters in the November 2013 election. Following a hearing, Judge Julio L. Mendez entered judgment directing the Borough to place the question challenging the ordinance on the 2013 general election ballot. The Borough's request to stay the order was granted.

On appeal, Frederick and the Borough (collectively, defendants) challenge the Law Division's consideration of the plaintiff's complaint, arguing the protest was untimely. Alternatively, defendants challenge the judge's findings on two issues: first, that plaintiff was not required to affix the names and addresses of five members on the petition prior to its circulation; and second, that Frederick's rejection of the petition on the basis of notarial errors was arbitrary and capricious. We are not persuaded and affirm concluding a voter protest of a bond ordinance is governed by the procedures set forth in the Home Rule Act N.J.S.A. 40:49-27, which does not require listing the Committee of Petitioners found in the referendum provisions governing ordinance challenges, other than those for capital improvement indebtedness, in a municipality formed under the Walsh Act, N.J.S.A. 40:74-5.

I.

On May 3, 2013, the Borough introduced and passed Bond Ordinance No. 522 (2013) (ordinance). The ordinance authorized issuance of $470,250 in bonds to finance the cost of various capital [435 N.J.Super. 557] improvements, including acquisition of a police sport utility vehicle, backhoe loader, street sweeper and skid steer; purchases for firefighters such as turn-out gear, flood valves, a hydric hose press, plasma cutter and repairs to the fire house; purchase of office equipment; purchase of computers, software, and technology equipment for the Police Department; purchase of office furniture for offices in Borough Hall; replacement or upgrade of a fueling station; and acquisition of equipment for the Public Works Department.

The ordinance was published in The Press of Atlantic City on May 9, 2013. Thereafter, at a specially advertised May 20, 2013 public meeting, the Borough passed the ordinance on its second and final reading.

Plaintiff is comprised of five Borough registered voters: Anna M. Santora, Gerard P. McNamara, Frederick J. Schweikert, Herbert C. Frederick, and Anthony J. Santora. The petition expressed it was drawn in compliance with N.J.S.A. 40:74-5, and contained the names and addresses of four of the five members, omitting Anthony J. Santora.[2] Plaintiff's members circulated the petition seeking to repeal the ordinance or place a referendum before the voters in the upcoming election. Plaintiff gathered sixty-two resident signatures, which exceeded fifteen percent of the votes cast in the preceding general election.[3] Plaintiff then filed the notarized petition with Frederick on June 7, 2013.

By letter dated June 15, 2013, Frederick rejected the petition, listing several deficiencies. First, she noted the petition was " defective because the petition d[id] not

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have the required number of Members of the Committee of Petitioners as per N.J.S.A. 40:74-5." [435 N.J.Super. 558] Second, the notarized month on two of the forms was illegible. Third, one form reflected a notarized date of May 6, 2013, which was prior to the final adoption date of the ordinance. Frederick explained because " the [p]etition was fatally flawed from the onset, . . . [it would] not be forwarded to the Board of Commissioners pursuant to N.J.S.A. 40:74-5."

In response, plaintiff amended the petition. Anthony J. Santora's name was added below the names and addresses of the other four members. Also, the notary, who executed the original attestation, corrected the erroneous date, striking a line through the incorrect " May 6, 2013" and replacing it with " June 6, 2013," the date voters signed the petition. The notary also crossed out the illegible months and replaced them with " June," adding her initials to these changes. The amended petition was resubmitted on June 19, 2013.

Frederick found the amended petition defective and returned it to plaintiff on June 25, 2013. She explained the amended petition was merely the original petition, modified in a manner she found unacceptable because N.J.S.A. 40:74-5 required a petition to identify five committee members prior to gathering voters' signatures. Frederick concluded the mere addition of the fifth petitioner, after voters had executed the petition, was insufficient. Further, Frederick took issue with the correction of the notarized dates, but did not explain the purported irregularity.

On July 19, 2013, plaintiff filed an order to show cause and a verified complaint in lieu of prerogative writs demanding " judgment against the Borough and . . . Frederick[,] compelling the suspension of [the ordinance] and presentation of said [o]rdinance to the voters" along with compensatory damages, punitive damages, attorney's fees and such other relief the court deemed just and appropriate. Judge Mendez presided over the evidentiary hearing held on the return date of the order to show cause. Frederick and Anthony J. Santora ...


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