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Newfield Fire Co. No. 1 v. Borough of Newfield

Superior Court of New Jersey, Appellate Division

January 23, 2015

NEWFIELD FIRE COMPANY NO. 1, Plaintiff-Appellant,
THE BOROUGH OF NEWFIELD, Defendant-Respondent

Submitted: September 29, 2014.

Approved for Publication January 23, 2015.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1077-13.

Buonadonna & Benson, P.C., attorneys for appellant ( Alan G. Giebner, on the briefs).

Weir & Partners, LLP, attorneys for respondent ( Daniel E. Rybeck and John C. Eastlack, Jr., on the brief).

Before Judges LIHOTZ, ST. JOHN and ROTHSTADT. The opinion of the court was delivered by LIHOTZ, P.J.A.D.


Page 687

[439 N.J.Super. 205] LIHOTZ, P.J.A.D.

We consider the scope of N.J.S.A. 40A:14-68, which allows a municipality to exercise " supervision and control" over a volunteer fire company, designated as its official firefighting organization. Plaintiff Newfield Fire Company No. 1 (Fire Company), a nonprofit, volunteer fire organization that has provided firefighting services to defendant the Borough of Newfield (Borough) for decades, appeals from an August 29, 2013 judgment substantially upholding Ordinance #2013-7, adopted by the Borough to regulate the Fire Company. Subject to three exceptions declared unenforceable, Judge Georgia M. Curio concluded the ordinance was a valid and enforceable exercise of municipal authority, permitted by N.J.S.A. 40A:14-68. The Fire Company argues the judge erroneously applied the statute and maintains the ordinance represents an invalid imposition of control over the affairs and internal governance of the Fire Company. Following our consideration [439 N.J.Super. 206] of the arguments presented in light of the record and applicable law, we reject these assertions and affirm.

In 1908, a volunteer firefighting organization, the predecessor to the Fire Company, commenced and has continuously provided firefighting services to the residents of the Borough. The Fire Company is an independent New Jersey nonprofit corporation, as verified by a certificate of incorporation and governing bylaws filed on March 12, 2012.[1] Article VI of the Fire Company's bylaws outlines the duties of officers, including the Chief; Article VII

Page 688

outlines qualifications and duties of membership; Article VIII authorizes the Fire Company to remove members; and Article XIII provides for the annual election of various officers, including the Chief, and the procedure to fill vacancies.

Historically, the relationship between the Fire Company and the Borough was harmonious, and the Fire Company and its predecessor have provided firefighting services " [a]s a matter of long[-]standing custom and practice," even before the Borough was chartered in 1924. Relations between the Fire Company and the Borough grew contentious in 2009 when the Fire Company's membership elected a new Fire Chief.

There is no written agreement between the Fire Company and the Borough. For years, the Fire Company has been housed in the Borough's municipal building, along with other municipal services. The enmeshed relationship of the Borough and the Fire Company is aptly illustrated by the fact that a sign in front of the Borough-owned municipal building was donated to and is owned by the Fire Company, but electricity to operate the sign is provided by the Borough. The Borough pays the Fire Company's liability and worker's compensation insurance, building maintenance and utilities, and purchased certain Fire Company equipment [439 N.J.Super. 207] such as its fire vehicles. The Fire Company itself generates resources independent from Borough funds through fundraising and contributions, to pay other on-going expenses.

In December 2010, the Borough adopted Ordinance #2010-11, entitled " Fire Department." This ordinance recognized the Fire Company as the sole firefighting organization in the Borough and provided the Borough " shall require the execution of all necessary agreements with the [Fire Company] to provide fire-fighting services," pursuant to N.J.S.A. 40A:14-68; " [m]embership in the [Fire Company] shall be in accordance with this chapter and the bylaws of the [Fire Company]" ; and appointment or election of the Fire Chief shall take place pursuant to the Fire Company bylaws. In accordance with Ordinance ...

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