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Desanctis v. Borough of Belmar

Superior Court of New Jersey, Appellate Division

July 9, 2018

BOROUGH OF BELMAR; MAYOR & COUNCIL OF THE BOROUGH OF BELMAR; COLLEEN CONNELLY, Borough Administrator of the Borough of Belmar; APRIL CLAUDIO, Municipal Clerk of the Borough of Belmar; and CHRISTINE GIORDANO HANLON, Monmouth County Clerk, Defendants-Appellants.

          Argued March 20, 2018

          On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3550-15.

          William W. Northgrave argued the cause for appellants (McManimon, Scotland & Baumann, LLC, attorneys; William W. Northgrave, Ted Del Guercio, III, and Frances E. Barto, on the brief).

          Kenneth E. Pringle argued the cause for respondents (Pringle Quinn Anzano, PC, attorneys; Kenneth E. Pringle, of counsel and on the brief; Denise M. O'Hara, on the brief).

          Before Judges Fasciale, Sumners and Moynihan.


          MOYNIHAN, J.S.C.

         The Borough of Belmar, Mayor and Council of the Borough of Belmar, Borough Administrator Colleen Connolly, and Municipal Clerk April Claudio (collectively defendants)[2] appeal from the Law Division judgments entered against them.

         The Mayor and Council of Belmar adopted Ordinance 2015-25 on July 7, 2015, appropriating $4.1 million for the construction of the Fifth Avenue/Taylor Pavilion[3] and authorizing the issuance of bonds and notes totaling $3, 895, 000 to finance part of the construction. After Belmar voters filed a protest petition pursuant to N.J.S.A. 40:49-27[4] seeking a referendum on the ordinance, the Mayor and Council approved Resolution 2015-159 on August 18, 2015, authorizing the placement of the referendum on the November 3, 2015 ballot. The resolution provided in part:

Section 3. [The General] election shall have a referendum on the Ordinance. In accordance with N.J.S.A. 40:49-10, the question shall be put to the voters as follows:
"To vote upon the public question printed below if in favor thereof mark a cross (x) or plus () in the square at the left of the word YES, and if opposed thereto mark a cross (x) or plus () in the square at the left of the word NO.
[ ] YES Shall an ordinance of the Mayor and Borough Council of the Borough of Belmar entitled 'Ordinance 2015-25, []Bond Ordinance Providing for the
[ ] NO Construction of the Fifth Avenue Pavilion in and by the Borough of Belmar, in the County of Monmouth, NewJersey, Appropriating $4, 100, 000Therefor and Authorizing the Issuance of $3, 895, 000 Bonds or Notes of the Borough to Finance Part of the Cost Thereof'; finally adopted on July 7, 2015, be ratified?"
Section 4. The Clerk is hereby authorized and directed to submit this resolution to the county clerk so the process of placing a referendum on a ballot can begin.

         The County Clerk received the resolution and public question on August 19, 2015.[5]

         An interpretive statement of the ordinance was not initially included in the passed resolution, although the Borough Administrator testified before the trial court that both she and the Mayor and Council informed a resident at the August 18 meeting that one would be prepared.The Borough

         Administrator also testified that, after "[i]ndividual members of Council spoke to [her] one-on-one after that meeting, again reiterating their desire that there would be an explanatory statement, "[6] she drafted the interpretive statement and "circulated it" to the Borough Attorney, Borough Clerk and Mayor. She submitted the interpretive statement - never voted on by the Mayor and Council - which was received by the County Clerk on August 28, 2015; it read:

This Ordinance provides for the reconstruction of the 5th Avenue Pavilion, also known as Taylor Pavilion, destroyed by Superstorm Sandy. The pavilion will be one-story and have the same functions and footprint as the prior building. This Ordinance enables the Borough of Belmar to finance the project while obtaining reimbursement from the Federal Emergency Management Agency (FEMA). The short term borrowing is expected to be repaid between 24 to 36 months. This Ordinance was unanimously approved by Belmar Mayor and Council on July 7, 2015.

         Plaintiffs DeSanctis and Bean first learned of the interpretive statement on September 9, 2 015; that day Bean expressed to the County Clerk his concern about information in the interpretive statement. The County Clerk replied to him on September 17 that she did "not believe there is any legal recourse at this point as to the explanation [in the interpretive statement] in terms of changing the ballot"; the County Clerk mailed those ballots to the public the next day.

         Plaintiffs filed suit on September 22, 2015 seeking judgment declaring the interpretive statement invalid because it was never voted on by the Mayor and Council, thereby depriving plaintiffs and the public an opportunity to comment on and object to its content, which contained "inaccurate, misleading and extraneous information," presenting another ground for invalidation. They also sought removal of the interpretive statement - in whole or part - from the ballot; and a determination of their claim under the New Jersey Civil Rights Act (CRA), N.J.S.A. 10:6-1 to -2, including a request for attorneys' fees and costs. We perpend Judge Katie A. Gummer's rulings on these issues, which arise from a series of orders that: (1) held the interpretive statement invalid because it was not submitted to the Mayor and Council for resolution and no such resolution was made, and because it was misleading and contained extraneous information intended to influence - not inform - voters; (2) held defendants violated the CRA by depriving plaintiffs a free and fair election, thus entitling plaintiffs to attorneys' fees and costs; and (3) awarded attorneys' fees and costs and prohibited payment from the Borough of Belmar's Beach Utility Fund.


         Judge Gummer found persuasive the holding in Town of Harrison Board of Education v. Netchert, 439 N.J.Super. 164, 186 (Law Div. 2014), and adopted that court's conclusion that an interpretive statement submitted to a county clerk without a resolution by the borough council was invalid. Echoing that holding, which the judge found "well established and consistent with the longstanding tradition of our State and our Country to ensure fairness of our election system," she declared the Belmar interpretive statement invalid. As plaintiffs note in their merits brief, the Netchert court "did not precisely articulate the rationale for [its] holding that [interpretive] statements that are not required by N.J.S.A. 19:3-6 must be adopted by resolution." We review questions of statutory interpretation de novo. Tumpson v. Farina, 218 N.J. 450, 467 (2014).

         We follow the well-trod trail of statutory interpretation:

In construing any statute, we must give words "their ordinary meaning and significance," recognizing that generally the statutory language is "the best indicator of [the Legislature's] intent." DiProspero v. Penn, 183 N.J. 477, 492 (2005); see also N.J.S.A. 1:1-1 (stating that customarily "words and phrases shall be read and construed with their context, and shall . . . be given their generally accepted meaning").Each statutory provision must be viewed not in isolation but "in relation to other constituent parts so that a sensible meaning may be given to the whole of the legislative scheme." Wilson ex rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012). We will not presume that the Legislature intended a result different from what is indicated by the plain language or add a qualification to a statute that the Legislature chose to omit. DiProspero, 183 N.J. at 493.
On the other hand, if a plain reading of the statutory language is ambiguous, suggesting "more than one plausible interpretation," or leads to an absurd result, then we may look to extrinsic evidence, such as legislative history, committee reports, and contemporaneous construction in search of the Legislature's intent. Id. at 492-93.
[Tumpson, 218 N.J. at 467-68 (alterations in original).]

         The Legislature provided, in N.J.S.A. 19:3-6, for both the mandatory and permissive inclusion of an interpretive statement:

Any public question voted upon at an election shall be presented in simple language that can be easily understood by the voter. The printed phrasing of said question on the ballots shall clearly set forth the true purpose of the matter being voted upon. Where the question concerns any amendment to the State Constitution, or any act or statute or other legal titles of any nature, the printed phrasing on the ballots shall include a brief statement interpreting same. In event that in any statute the public question to be voted upon is so stated as not clearly to set forth the true purpose of the matter being voted upon and no provision is made in said statute for presenting the same in simple language or printing upon the ballots a brief statement interpreting the same, there may be added on the ballots to be used in voting upon the question, a brief statement interpreting the same and setting forth the true purpose of the matter being voted upon in addition to the statement of the public question required by the statute itself.

         Although the interpretive statement here is not mandated because the public question does not concern a constitutional matter, the discrete treatment accorded ...

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