TrishkaW.Cecil1
MASON,GRIFFIN&PIERSON,P.C.
101PoorFarmRoad
Princeton,NewJersey08540
(609)436‐1211
trishka@mgplaw.com
CASESUMMARIES
ASamplingof2013‐2014CourtDecisionsAffecting
Municipalities
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Trishka Cecil is the president of the New Jersey Institute of Local Government Attorneys and practices in the areas
of local government law, land use, and appellate and prerogative writ litigation. The case summaries contained in
this handout were prepared by Ms. Cecil and her fellow editors of the Local Government Law Review, and have
been reprinted here by permission of the Institute of Local Government Attorneys. The summaries represent a
sampling of published and unpublished court decisions issued between October 2013 and October 2014. The
summaries
are organized by topic and subtopic, more or less in alphabetical order.
AFFORDABLEHOUSING
 THIRDROUNDRULES
In re Adoption of N.J.A.C. 5:96 & 5:97 by N.J. Council on Affordable Housing, 215 N.J. 578
(2013)
http://njlaw.rutgers.edu/collections/courts/supreme/a-90-10.opn.html
The Third Round Rules of the Council on Affordable Housing (COAH) N.J.A.C. 5:96 and 5:97
are at odds with the Fair Housing Act (FHA), L. 1985, c. 222; see N.J.S.A. 52:27D-302. Under
the revised Third Round Rules, a municipality accrues its affordable housing obligation as a
percentage of growth that actually occurs within its borders. The growth share obligation is
based on ratios formulated from statewide—not regional—data on projected housing need,
employment and residential growth. The FHA’s framework is replete with references tying
affordable housing obligations to a region, not obligations formed on a statewide basis, and it
requires a specifically allotted number of units for satisfaction of both present and prospective
need based on a housing region. The FHA was adopted in response to S. Burlington Cty. NAACP
v. Twp. of Mount Laurel, 92 N.J. 158 (1983) (Mount Laurel II) which required allocation of
housing need on a regional rather than a statewide basis. While the allocation methodology of
Mount Laurel II is not a straightjacket to legislative innovation for satisfaction of the
constitutional obligation, the Legislature has not done so Although Section 307 of the FHA
permits COAH to adjust prospective need methodology based on decisions of other branches of
government, that oblique reference does not authorize the agency to rewrite such core aspects of
its enabling legislation, which are premised on an allocation basis for prospective need within a
housing region. The growth share methodology is so intertwined with the new regulatory
scheme that it cannot be severed. The Court endorsed the Appellate Division’s five-month
deadline for reimposing third-round obligations based on the previous rounds’ method of
allocating fair share obligations among municipalities.
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CIVILRIGHTS
 ATTORNEYSFEES
Tumpson v. Farina, 218 N.J.450 (2014)
http://njlaw.rutgers.edu/collections/courts/supreme/a-13-13.opn.html
The New Jersey Civil Rights Act (NJCRA) in N.J.S.A. 10:6-2(c) affords an injunctive remedy
and attorney’s fees to any person who is denied a “substantive right” under the New Jersey
Constitution or laws by any person acting under color of law. Farina, the City Clerk of Hoboken
(a Faulkner Act municipality) refused to accept for filing a petition that was presented in a timely
fashion seeking a referendum on an adopted rent control ordinance. Even if all signers were
genuinely registered voters, there were not enough to meet the statutory requirement to compel
such a referendum. When advised of this, the petitioners brought a revised petition with more
signatures but were then told by the clerk that the petition would not be filed because it was out
of time. A court challenge resulted in the referendum being placed on the ballot at the next
election but the referendum was defeated. The Supreme Court in a 4-2 decision held that the
petitioners were entitled to attorney’s fees under the New Jersey Civil Rights Act. The court
recounted the history of the referendum provisions of New Jersey law dating back to the time of
Governor Woodrow Wilson and the expansion of those provisions under the Faulkner Act. It
also reviewed its more recent opinions stressing the importance of the right of citizens to a
referendum in many circumstances. The court held, therefore, that the right to vote in a
referendum was a substantive right guaranteed by the Faulkner Act which was vindicated by the
actions successfully brought here by the petitioners, thus entitling them to attorney’s fees.
Because the New Jersey Civil Rights Act is similar in purpose to the federal 42 U.S.C.A. § 1983,
the Supreme Court found that the determination of what was a “substantive right” should be
determined under the test set forth in Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S. Ct.
1353, 1359, 137 L. Ed. 2d 569, 582 (1997) and found that. (1) the referendum statutes were
intended to confer a "benefit" on plaintiffs as a representative class of voters of Hoboken; (2) the
statutory right to challenge an ordinance and place it before the voting public is not "so `vague
[or] amorphous' that its enforcement would strain judicial competence"; and (3) the Faulkner Act
"unambiguously impose[s] a binding obligation" on Hoboken.
The dissenters would have held that the petitioners had not been denied a substantive right
because until the court ruled on their complaint, there had been no case law requiring a clerk to
file a petition which, on its face, had an insufficient number of signatures. As a result of the
petitioners’ complaint their right to a referendum was granted so they were not denied the
referendum right. Justice Patterson concluded that “the majority applies the NJCRA beyond its
intended parameters when it construes a municipality's assertion of a good faith legal position in
an area of unsettled law to be a deprivation of plaintiffs' civil rights within the meaning of
N.J.S.A. 10:6-2(c)”
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CONFLICTSOFINTEREST
 LOCALGOVERNMENTETHICSLAW
Scull v. Local Finance Board (Unpub. App. Div. June 2, 2014)
http://scholar.google.com/scholar_case?case=11642249683172704635
A member of the Pemberton Township Council voted on an ordinance establishing salaries of
twelve township officials, including that of the Water Superintendent, her husband’s direct
supervisor. The Appellate Division affirmed assessment of a $200 penalty by the Local Finance
Board for a violation of the Local Government Ethics Law, N.J.S.A. 40A:9-22.5(d). The
township council member argued that she did not have a “direct or indirect personal
involvement” because the water superintendent had no control over her husband, other than
managing daily work assignments. The Court found that the standard for these cases was
whether there is a potential for conflict rather than proof of an actual conflict. The court found
that there are many ways in which a supervisor can impact an individual’s employment
positively or negatively, including assigning duties, scheduling of vacation time, controlling
overtime and disciplining the employee. Thus it affirmed the findings of the Administrative Law
Judge and the ruling of the Local Finance Board.
 PUBLICCONTRACTS
Patock Construction Co. v. New Jersey Schools Development Authority (Unpub. App.Div.,
Jan.10,2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a1399-13xx.opn.html
The New Jersey Schools Development Authority issued a request for proposals in connection
with a design-build contract. The bidders were required to provide the names and resumes of
their design consultants and key team members. Patock submitted a proposal and included Craig
A. Slater, AIA as its project architect and a key team member. The authority determined that
Slater had been an authority employee for a six-week period and that he had been substantially
and directly involved in drafting materials on behalf of the authority for the project in question..
The authority therefore disqualified Slater pursuant to the New Jersey Uniform Ethics Code
(N.J.S.A. 52:13D-17), and the Authority's Design-Build Conflict of Interest regulation (N.J.A.C.
19:36-3.5). It rejected Patock’s bid as non-responsive and did not allow a substitution for Slater
as a key team member. The court found that the authority’s decision was not arbitrary, capricious
or unreasonable and was supported by substantial credible evidence in the record as a whole.
The authority's interpretation of the ethics rules was reasonable and correct. Although the
authority's regulations allow for substitution of a key team member, it was not required to do so,
and authority did not abuse its discretion by disallowing the substitution. Its reasons for doing so
were supported by substantial credible evidence in the record and by the public policy underlying
public bidding laws. Therefore, the court upheld the disqualification of Patock.
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CONSTITUTIONALLAW
 FIRSTAMENDMENT
Eggert v. Bethea, 2014 WL 1310314 (Unpub. D. N.J. April 10, 2014)
http://scholar.google.com/scholar_case?case=9963618923594083493
Eggert, the Mayor of Tuckerton, was a member of the Board of Trustees of the Great Bay
Regional Volunteer Emergency Medical Services (“Great Bay”) a volunteer organization created
by four communities for emergency services. The mayor of each of the constituent communities
was an ex-officio member of the board. Eggert was an outspoken critic of his fellow trustees and
other members of the organization. After substantial acrimony, he published an editorial which
he questioned whether the squad captain was competent, attacked another member for "false"
accusations of sexual harassment, and suggested that several other Great Bay officials were
guilty of improprieties including theft, misappropriation of funds, and defamation. After a
hearing, he was removed as a trustee and sought civil rights damages in the Federal Court. The
court assumed that, even though private, non-profit entity, Great Bay was a state actor for the
purpose of evaluating claims because of the presence of the four mayors on its board. However,
the court found that Eggert did not have a valid First Amendment free speech claim because the
unrestrained vitriol in the editorial is almost certain to "affect discipline and morale in the work
place, foster disharmony, and ultimately impair the efficiency of an office or agency” and thus,
was not protected speech for a trustee of an entity. As to his Fourteenth Amendment claim the
court found that Eggert had no property interest in his position as a trustee.
 FIRSTAMENDMENT;DUEPROCESS
Gomez v. Town of West New York, 2013 WL 5937415 (Unpub.D.N.J. 2013)
http://scholar.google.com/scholar_case?case=17162902782686559939&q=Gomez+v.+Town+of
+West+New+York&hl=en&as_sdt=3,31
Gomez was allegedly terminated from employment by West New York for refusing to do work
for a personal non-profit organization of Mayor Roques on “company time” and for participating
in a website calling for the Mayor’s recall. He filed a four-count complaint against the town and
various individuals, alleging federal and state substantive and procedural due process violations
and violations of New Jersey’s Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:191et seq. This matter came before the court on defendants’ motion for dismissal of the complaint.
The court ruled that the allegations in the complaint, if proven, were sufficient to state a cause
for relief and refused to dismiss the complaint. The court explained that a claim of First
Amendment retaliation requires demonstration of (1) constitutionally protected conduct; (2)
retaliatory action sufficient to deter a person of ordinary firmness from exercising his
constitutional rights; and (3) a causal link between the constitutionally protected conduct and the
retaliatory action. Gomez had alleged that the defendants retaliated against him because he spoke
out against the mayor’s desire to have him do private work for the mayor during his town work
hours. If proven, such speech would certainly be a matter of public concern, worthy of the First
Amendment’s protection. Under CEPA, protected whistleblowing activities include refusing to
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do work the employee believes is illegal; thus the CEPA count survived dismissal. Finally, the
pleadings described an adequate basis for procedural due process violations because Gomez
alleged that he had been given no hearing prior to dismissal.
 FIRSTAMENDMENT:SIGNS
B&J Equities, LLC v. Board of Adj. of Twp. of Franklin, ___ N.J. Super. ___ (App. Div. Oct.
17, 2014)
Franklin Township’s ordinance banning digital or “variable message” billboards, but allowing
static billboards, does not violate the First Amendment. The decision contains a thorough and
detailed analysis of the caselaw regarding time, place and manner restrictions and the regulation
of billboards.
 RELIGIOUSFREEDOM:PUBLICMEETINGS
Town of Greece, NY v. Galloway, ___U.S. ___, 134 S.Ct.1811, ___ L.Ed. 2d ___, 2014 WL
1757828 (2014)
http://scholar.google.com/scholar_case?case=7055152929494104645
The Town of Greece, NY created a practice of inviting clergy and others to open the meetings of
the town council with a prayer. A clerk to the council asked clergy at various churches in the
town for their availability to lead the prayer and scheduled their appearances at the meeting.
After some questions were raised, people who wanted to offer the prayer were also put on the
list. Most of the clergy were Christian because the town had primarily Christian churches.
However, prayers have been offered by people of different faiths. The prayers were not screened
by anyone on behalf of the town and there was no evidence of discrimination. Some of the
clergy offered prayers with Christian references. In some cases, clergy asked people to stand or
to bow their heads.
The Supreme Court held that a municipality does not violate the
Establishment Clause of the First Amendment to the United States Constitution by opening its
meeting with a prayer. That type of prayer has been upheld when done at the beginning of
Congress and sessions of a state legislature and can fairly be said to be a tradition of the United
States. Such a prayer, in the circumstances of this case, does not compel citizens to engage in a
religious observance. The prayer does not have to be nonsectarian to comply with the
Establishment Clause in the circumstances of this case.
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COUNTIES
 AUTHORITYOFEXECUTIVE
Bergen County Police PBA Local 49 v. Donovan, 436 N.J.Super. 187(App. Div. 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a1810-12.opn.html
Under the Optional County Charter Law (N.J.S.A. 40:41A–1 et seq.), the Bergen County Sheriff
has the exclusive statutory authority to negotiate with the employees of the Sheriff's Department.
The court found that the language of N.J.S.A. 40A:9-117 was clear in saying the sheriff "shall"
select, employ, and "fix the compensation" of the personnel in the department, subject only to
certain budgetary requirements. Therefore, the sheriff, not the executive, is the exclusive
employer and hiring authority for the sheriff's office and its employees, and can solely negotiate
the collective bargaining agreement for those employees. The court further determined that
N.J.S.A. 40:41A-36 (describing the authority of the executive) and -38 (describing the authority
of the board of freeholders) do not limit the board to approving only contracts submitted by the
executive, and therefore the board approval of the contract submitted by the sheriff in this case
was sufficient to validate it Finally, the court determined that the matter was properly before the
court for statutory interpretation, rather than before the New Jersey Public Employment
Relations Commission (PERC).
Donovan v. Bergen County Board of Chosen Freeholders, 436 N.J.Super. 91 (Law Div. 2012)
affirmed o.b. 436 N.J.Super. 1 (App.Div. 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a1117-12.opn.html
Judge Toskos in the Law Division held that, under the Optional County Charter Law (N.J.S.A.
40:41A–1 et seq.), the County Executive, and not the Board of Chosen Freeholders, has the
authority to hire the county's auditor. The Local Fiscal Affairs Law (N.J.S.A. 40A:5–1 et seq.),
delegates the authority to the “governing body.” Under the general terms of Optional County
Charter Law, as it applies to the county executive form, the term “governing body” is defined to
include both the board and the executive. However, in more specific terms, the executive has the
power to make appointments, enter into contracts and propose budgets (N.J.S.A. 40:41A–36)
while the board is limited to approval of contracts and the budget presented by the executive
(N.J.S.A. 40:41A–38 and 41). The court determined that this provides a clear and specific
legislative intent to vest in the executive the authority to appoint the registered municipal
accountant and that, therefore, the provision of the Bergen County code granting that authority to
the board is void. Under N.J.S.A. 40:41A-40 the executive has the statutory right to participate
in meetings of the board. The court found that the power under that section belonged to the
executive alone and could not be delegated by her to an administrative officer of the county. The
freeholder’s action in denying the administrator the right to speak for the executive at meetings
of the board was therefore upheld. On appeal the Appellate Division reviewed, de novo, the
statutory interpretation applied by Judge Toskos and determined that he had correctly applied
well-established principles of statutory construction, that the legal conclusions were unassailable
and that the decision should be affirmed substantially for the reasons expressed by him.
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 AUTHORITYOFEXECUTIVE;VETO
Northwest Bergen County Utilities Authority v. Donovan (Unpub. App. Div. Sept. 9, 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a0285-12.opn.html
The Bergen County Executive vetoed a portion of the budget of the Northwest Bergen County
Utilities Authority that provided healthcare benefits and a stipend to the commissioners of the
authority. When the commissioners of the authority refused to modify the budget to eliminate
the health care benefits and stipend, the executive terminated seven of the commissioners. When
the authority voted to take an appeal from the veto to the Local Finance Board as authorized by
law, the executive also vetoed those portions of the minutes that authorized the authority to
appeal and to expend money for counsel. The Appellate Division decided that the county
executive had the authority pursuant to the County Charter Law, N.J.S.A. 40:41A-37(h), to veto
the portion of the minutes which provided the compensation and health benefits. The executive,
however, did not have the right to terminate the terms of the commissioners because, under the
Charter Law, N.J.S.A. 40:41A-37(c) she could terminate only those members of the unclassified
civil service that she had the authority to appoint. Her appointment of commissioners was
subject to the advice and consent of the freeholders. The authority commissioners were not
entitled to the benefit of N.J.S.A. 40:14B-17—part of the governing utilities law – which
provides that any compensation authorized for commissioners could not be reduced during their
term in office because there had been no resolution of the freeholders authorizing the
compensation to those commissioners as required by that law. The current commissioners were
not entitled to be paid under an old resolution, adopted by the freeholders when the initial
commissioners were appointed, because the terms of all of those initial commissioners had
expired. Finally, the court decided that the executive’s veto of the appeal and counsel fees for
the appeal was ineffective because it was inconsistent with the provision of the New Jersey
Constitution (N.J.Const. Art. V, § 4) that allows appeals as authorized by law. There was
statutory authority for an appeal of executive vetoes to the Local Finance Board.
 FREEHOLDERDIRECTOR’SVETO
Salem County Improvement Authority v. Salem County Board of Chosen Freeholders 436
N.J.Super. 16 (Law Div. 2014)
In a county that has not adopted an optional county charter, the freeholder director has the
authority, under N.J.S.A. 40:37A-50, to veto the minutes of an independent county agency – in
this case, an improvement authority. Here the director vetoed a portion of the authority’s
minutes awarding professional service contracts and the veto was approved by the board of
freeholders. Although the statute requires the freeholder director to give reasons for the veto, the
court held that the power of the freeholders to approve the veto is expansive. In reviewing the
legislative history, the court noted that there was no statutory bar against the use by the director
or the board to veto professional appointments. The act of the freeholder director and ultimately
the freeholder board are presumptively valid and would not be overturned unless “arbitrary,
capricious and unreasonable.” Because of the reasons given by the freeholder director, the court
held that the authority had not overcome the presumption of validity of the veto.
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EASEMENTS
 FAILURETOPERFORM;UNFORESEENCIRCUMSTANCES;
RIGHTTOCOMPENSATION
Petrozzi v. City of Ocean City, 433 N.J.Super. 290 (App.Div. 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a1677-11.opn.html
Plaintiffs, seaside residential property owners, brought suit against Ocean City for alleged breach
of easement agreements they had entered into with the city several years prior in connection with
the construction of a protective dune system. The easements provided for a maximum elevation
of the dunes so that the views of the property owners would be protected. After years of
accretion of sand, it became necessary for the city to reduce the height of the dunes, but because
of DEP regulations it was unable to get the permission to do so from the DEP. Plaintiffs claimed
damages for the diminution in the value of their properties. The Appellate Division agreed with
the trial court the under contract law the city was excused from performance but instead of
denying damages as the trial court did the Appellate Division ruled that equity demands fair
restitution in these circumstances. The case was remanded for a hearing to establish damages
utilizing a severance damage analysis such as that used in City of Ocean City v. Maffucci, 326
N.J. Super 1 (App.Div.), certif. denied, 162 N.J. 485 (1999) because the trial court, although
citing Maffucci, had not made findings specific enough to underlie the rationale of its decision.
The court further directed the remand judge to take into consideration the recent holding by the
Supreme Court in Borough of Harvey Cedars v. Karan, 214 N.J. 384 (2013) to determine
whether the diminished value of property should be offset by any quantifiable increase in value
derived from storm protection benefits.
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ELECTIONS
 COUNTYBOARDOFELECTIONSMEMBERS;ETHICSOF
ENDORSEMENT;
Baraka v. Adubato (Unpub., Law Div. Essex County, Docket No. ESX-L-2170-14, April 28,
2014, Vena, J.S.C.)
Plaintiff was a candidate for mayor of Newark; defendants were duly appointed members of the
Essex County Board of Elections; and defendants publicly endorsed one of the other mayoral
candidates in the May 13, 2014 election. Plaintiff alleged that in so doing, defendants violated
the New Jersey Ethics Act, N.J.S.A. 52:13D-12 to -28, as well as the Uniform Ethics Code and
the Essex County Board of Elections Code of Ethics. Judge Vena rejected these claims. The
judge noted that, the Attorney General had issued an advisory opinion in 1989 which had
concluded that it would be a violation of the New Jersey Conflicts of Interest Law for a county
superintendent of elections to publicly endorse a candidate for public office, but that the same
did not hold true for members of a county board of elections, because those positions are
expressly political. The court used the same rationale to reject the claims of violation here. The
judge also noted in dicta that plaintiff had failed to exhaust his administrative remedies, finding
that he first should have sought review by the State Ethics Commission.
 FREESPEECH;RESIDENCYREQUIREMENTS
Empower Our Neighbors v. Guadagno (Unpub. Law Div. Mercer County, Docket No L-31811, March 31, 2014, Jacobson, A.J.S.C.)
An unincorporated neighborhood association challenged various state election statutes imposing
residency and other requirements on petition circulators as violating the First Amendment
protections on speech. Relying on a series of U.S. Supreme Court and other federal court
decisions, the court held that the acts of circulating a candidate petition or a petition for recall are
political speech. Any law that imposes a severe burden on political speech is subject to strict
scrutiny and, to survive, must advance a compelling government interest. If the burden is not
severe, the government may justify the law by satisfying the balancing test that its important
regulatory interests are served by the laws. Applying these standards to the various laws being
challenged, Judge Jacobson held: 1) The provisions of N.J.S.A. 19:13-7, 19:60-7, 19:27-9(a),
and 19:27-5(h) requiring that petition circulators for general election, school board election and
recall initiatives be registered voters and reside in the political subdivision for which ballot
access is being sought were unconstitutional. 2) The provision of N.J.S.A. 19:23-11 requiring
that a petition circulator for a partisan primary election be a member of the applicable political
party is constitutional. In partisan primary elections, the political parties have their own freedom
of expression rights to choose the candidates with whom they will associate and their
membership qualifications. Government has an important regulatory interest in protecting the
primary processes of political parties by excluding circulators who are not members of the
applicable party. 3) The provision of N.J.S.A. 19:23-11 requiring that, in a partisan primary
election, a petition circulator be a resident of the applicable district was unconstitutional.
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EMINENTDOMAIN
 BONAFIDENEGOTIATIONS
Borough of Merchantville v. Malik & Son, LLC, 218 N.J. 556 (2014)
http://njlaw.rutgers.edu/collections/courts/supreme/a-66-12.opn.html
A municipality seeking to condemn property has no duty under the Eminent Domain Act,
N.J.S.A. 20:3-1 to -47, to conduct bona fide negotiations under N.J.S.A. 20:3-6 with anyone
other than the “title owner of record,” before initiating condemnation action. A holder of a
mortgage on the property to be condemned has no right to be included in bona fide negotiations
even if, during the period between the commencement of negotiations and the filing of the
condemnation action, the mortgagee has obtained a judgment in foreclosure and has set the
matter down for sheriff’s sale. Although the mortgagee had obtained court orders demonstrating
a significant monetary interest in the condemned property, the title owner retained the right to
redeem the delinquency in the mortgage and thus, the mortgagee had no actual ownership
interest in the property and had no standing to be involved in the negotiations. The court found
that by obtaining an appraisal and submitting it to the owner of record with a single offer, the
municipality had discharged its duty to negotiate with the owner of record who, in response to
the offer, had simply said that it would not accept any amount less than that needed to discharge
the liens
 VALUATIONDATE
Hoboken v. Ponte Equities Inc. (Unpub. Law. Div. Hudson, HUD-l-4095-12,Feb. 19,2014,
Bariso, A.J.S.C.)
The issue in this case was whether three actions taken by the City of Hoboken at a specific City
Council meeting substantially affected the value of a property the City subsequently sought to
condemn, thereby establishing the date of the meeting as the date of valuation. The actions in
question consisted of the introduction of an ordinance rezoning several properties, including the
property in question, as open and recreational space (the ordinance was never adopted and the
rezoning never actually took place); the adoption of a resolution recommending that the
Hoboken Zoning Board postpone consideration of any and all pending variance applications for
various properties, including the property in question; and the adoption of a resolution retaining a
valuation firm to perform appraisals on a variety of sites, including the property in question, for
the completion of an application to City's Hudson County Open Space Trust Fund for additional
funding for acquisition of the subject property and others. Judge Bariso held that none of these
actions, either individually or cumulatively, were sufficient to establish the date of the council
meeting as the date of valuation. The court found that the actions might have put potential buyers
on guard, but did not indicate a reasonable certainty that the property would soon be condemned.
The opinion contains a detailed and useful review of the case law about the date of valuation.
10
EMPLOYMENT
 RACIALDISCRIMINATION
Brown v. Delaware River Port Authority, ___ F. Supp.2d ___, 2014 WL 1301530 ( D. N.J.
April 2, 2014)
http://scholar.google.com/scholar_case?case=4602166640972605924
Plaintiff was an African-American police sergeant employed by the Delaware River Port
Authority. He applied for a job for a vacant position of lieutenant, along with seventeen other
sergeants. The day after the initial posting of the notice of vacancy, and six days before plaintiff
or anyone else had applied for the position, the Authority revised the initial posting to reduce the
educational requirement from a bachelor’s degree (which plaintiff had) to an associate’s degree
or documented law enforcement training obtained within the past five years. As a result of the
revised posting, four applicants without bachelor’s degrees (three of whom were Caucasian and
one of whom was Hispanic) made the cut and were promoted along with two others. Plaintiff,
who was not promoted, brought an action against the Authority alleging race discrimination in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. On the
authority’s motion for summary judgment, the Court found that although the plaintiff had
established a prima facie claim of Title VII race discrimination, he had failed to show that the
authority’s reasons for lowering the educational requirement—that it was a common practice and
that there was a need to increase the applicant pool in order to fill six vacancies rather than one—
were a pretext for race discrimination. The court accordingly dismissed the complaint.
Kirschling v. Atlantic City Board of Education, ___ F.Supp.2d ___ 2014 WL 1301695 (D. N.J.,
2014)
http://scholar.google.com/scholar_case?case=8033508844198089125
Kirschling, a Caucasian male, resigned and retired from his job as an administrator for the
Atlantic City Board of Education and then filed a suit claiming reverse discrimination and
constructive discharge under the New Jersey Law Against Discrimination (LAD) (N.J.S.A. 10:51, et seq.). Kirshling’s burden under LAD was to establish a prima facie case of reverse race
discrimination by demonstrating: (1) background circumstances supporting the suspicion that the
board is the unusual employer who discriminates against the majority; (2) that he was otherwise
qualified and performing the essential functions of the job; (3) that his resignation was the result
of constructive discharge; and (4) that the board thereafter sought similarly qualified individuals
for that job. The court dismissed on summary judgment finding that Kirschling had failed to
identify specific admissible facts and affirmative evidence with respect to the first and third
elements.
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 RIGHTTOPRIVACY;DRUGTEST;OPENPUBLICRECORDS
Connelly v. Borough of Eatontown (Unpub. App. Div. April 8, 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a0728-12.opn.html
Connelly, an employee of Eatontown, appealed a disciplinary finding by the Borough
Administrator to the governing body. At the time of the governing body hearing Connelly, after
receiving a notice served on him pursuant to Rice v. Union Cty. Reg. High Sch. Bd. of Educ., 155
N.J. Super. 64 (App. Div. 1977), certif. denied, 76 N.J. 238 (1978), exercised his right for the
hearing be held in public. During the hearing, a prior discipline based upon a positive finding on
a random drug test was made part of the record. The disciplinary matter was later settled, but
Connelly filed suit claiming among other things, invasion of privacy for release of the drug test
results. The court upheld the summary judgment in favor of Eatontown, finding that Connelly
had voluntarily exposed his drug test to public view by requesting that the governing body
conduct his disciplinary hearing in public, thereby eliminating any reasonable expectation of
privacy.
 SENIORITY;MATERNITYLEAVE
Kolodziej v. Board of Education of Southern Regional High School District, 436 N.J.Super.
546 (App.Div. 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a4826-12.opn.html
Appellant was employed as a teacher for three consecutive academic years prior to taking a yearlong unpaid leave of absence for a pregnancy. She then returned to the same position for an
additional year. Thereafter she was given a reduction in force notice stating that she lacked
tenure under N.J.S.A. 18A:28-5(b) and that her position was being eliminated. The Appellate
Division reversed the decision of the commissioner of education holding that she did not have
tenure and, in doing so, held that both the federal Family Medical Leave Act, 29 U.S.C.A §
2601(b)(2) and the New Jersey Family Medical Leave Act N.J.S.A. 34:11B-1 et. seq. require the
appellant to be considered an “employee” during the time of her leave and thus that she was
entitled to tenure.
12
FIREARMS
 FULLFAITHANDCREDITCLAUSE
In the Matter of Denial of Application by George Winston, Jr. for a Firearms Purchaser
Identification Card, __ N.J. Super. ___ (App. Div. Oct. 31, 2014)
The Full Faith and Credit clause of the United States Constitution does not require New Jersey to
treat the applicant’s New York criminal convictions, for which he had obtained “certificates of
relief from disabilities” pursuant to New York law, as not disqualifying him from obtaining a
New Jersey firearm purchaser’s identification card or a permit to purchase a handgun. A person
convicted of a crime in another state is disqualified from gun ownership in New Jersey, and the
certificates that New York issued to the applicant do not alter that result. The certificates did not
alter or expunge the underlying convictions; they merely removed certain disabilities and bars to
employment normally associated with convictions under New York law. Moreover, the Full
Faith and Credit Clause does not require one state to substitute for its own statute the conflicting
statute of another state. The court therefore concluded that “[t]here is no constitutional
requirement that New Jersey deem Winston not disqualified for a permit under its firearms law
just because New York has seen fit to do so under its law.”
 PREEMPTION
In the Matter of Application of a New Jersey Firearm Purchaser Identification Card by
McGovern (Unpub. App. Div. April 28, 2014)
http://scholar.google.com/scholar_case?case=3938144296237201117
Jersey City’s forms for the issuance of a handgun permit were preempted by N.J.S.A. 2C:58-3
which prohibits the licensing authority from imposing conditions or requirements which are in
addition to those specifically set forth in the statute. While the ultimate burden of showing good
cause for denial of a permit rests upon the issuing authority, this did not justify the applicant’s
refusal to obtain and provide information concerning three college age arrests, which occurred in
the state of Florida. Under these circumstances, the Appellate Division reversed an order of the
Law Division denying applicant’s gun permit applications and remanded the matter for
reconsideration by the police chief and the trial court in conformity with its opinion.
In the Matter of the Application of Perez, 2014 WL 51472 (Unpub. App.Div. Jan. 18, 2014)
http://scholar.google.com/scholar_case?case=875653740408678162&q=In+the+Matter+of+the+
Application+of+Perez&hl=en&as_sdt=4,31&as_ylo=2013
The Paterson Police Department denied Perez’s application for a firearms permit because he did
not complete a form required by the City for those permits. He challenged the denial, claiming
that under N.J.S.A. 2C:58-3, the statute controlling firearms permits, the City could not require
the form. The court agreed with Perez, and remanded the matter for further proceedings. In
considering applications for firearms permits, municipalities may not demand more information
that what is prescribed by the Superintendent of the State Police.
13
INITIATIVEANDREFERENDUM
 FILINGDEADLINE
Finkel v. Township Committee of the Township of Hopewell, 434 N.J.Super.303 (App.
Div.2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a0908-13.opn.html
N.J.S.A. 19:37-1 requires that a request for a non-binding referendum be submitted to the County
Clerk at least 81 days before a scheduled election date. Hopewell Township submitted a request
along with its certified resolution 70 days before the election date. The Township contended that
the failure to submit a request by the 81-day deadline was inconsequential because of the
provisions of N.J.S.A. 19:37-2 which provides that if the County Clerk has the certified
resolution at least 65 days before the election, the clerk shall put the question on the ballot. In a
suit by residents to bar the holding of the referendum, the court found that the 81-day deadline
must be met. After reviewing the various statutory methods by which a non-binding referendum
may come to be placed on the ballot, the court determined that even though the underlying
legislative intent has not been expressed in the clearest manner the present wording of N.J.S.A.
19:37-1 and N.J.S.A. 19:37-2 most logically appears to provide for a two-step process: first, the
governing body's "request" under subsection 1, either through the adoption of a resolution or an
ordinance, to include a referendum on the ballot to be submitted 81 days before the election;
then by the submission under subsection 2, at least 65 days before the election, of a certified
resolution containing the ballot question. Although the referendum had already been held at the
time of the decision, the court did not declare the matter moot but instead exercised its discretion
to decide an otherwise moot case saying that the case involved issues of significant public
importance that are likely to be raised again in the context of what is usually an expedited
schedule for election cases.
 REPEAL
Redd v. Bowman , 433 N.J.Super. 178 (App.Div. 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a5731-11.opn.html
The Camden City Council passed a resolution to enter into a plan with the Department of
Community Affairs and Camden County by which a county police department would be created
to provide policing, on a voluntary basis, for all municipalities in the county, including the city.
A committee of voters filed a petition seeking an initiative ordinance that would require Camden
to amend its code to establish a local police department. In an action by the council president
and the mayor, the trial court held that the proposed initiative ordinance should be restrained
because the proposed ordinance would create an undue restraint on the future exercise of
municipal legislative power. Although such a holding might have been justified by McCrink v.
West Orange, 85 N.J. Super. 86, 91 (App. Div. 1964) and Maese v. Snowden, 148 N.J. Super. 7,
11 (App. Div. 1977), the Appellate Division held that, after Maese, the Faulkner Act, N.J.S.A.
40:69A-196(a), had been amended specifically to provide for a three year time period in which
an ordinance enacted through petition could not be reversed solely by the governing body but
14
could be repealed only by the voters. Thus the Faulkner Act was construed to allow a restraint
on future legislative powers of the governing body for period of three years after adoption of an
initiative ordinance. While refusing to restrain the initiative ordinance based upon the grounds
set forth by the trial court the Appellate Division remanded the matter for a determination of
whether the initiative ordinance was preempted by the various statutes concerning Camden’s
budget problems and long-term solutions for them.
 WALSHACT
Committee of Petitioners for the Repeal of Ordinance Number 522 (2013) of the Borough of
West Wildwood v. Frederick , 435 N.J.Super. 552 (App. Div. 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a0870-13.opn.html
The Appellate Division held that, in a municipality formed under the Walsh Act, N.J.S.A. 40:705, a voter protest of a bond ordinance is governed by the Home Rule Act, N.J.S.A. 40:49-27. The
court found that the Home Rule Act establishes specific procedures “particularly suited” to the
protest of the bond ordinance in question. Consequently, the petitions did not need to contain a
list of the names and addresses of members of the committee of petitioners. The Court found the
Borough Clerk had acted in an arbitrary and capricious manner by rejecting the petitioners’
corrected petition without providing guidance or direction on how and why identified
deficiencies could be corrected. The opinion also examined the standards for relaxation of the
statutory filing period when the “interests of justice” require it.
15
LANDUSE
 DOWNZONING
Griepenburg v. Ocean Township (Unpub. App.Div., Aug 29, 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a5640-11.opn.html
The Appellate Division invalidated the downzoning of plaintiff’s property from residential and
highway commercial to an Environmental Conservation Zone, allowing one dwelling unit per 20
acres. The court found that the ordinances were not required to serve their stated purposes and
did not reflect reasonable consideration of existing development in the areas where the property
is located. Certification has been granted.
 INHERENTLYBENEFICIALUSE;HOUSING
Advance at Branchburg II, L.L.C. v. Township of Branchburg Board of Adjustment, 433
N.J.Super. 247 (App.Div. 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a1840-12.opn.html
Although affordable housing can be considered an “inherently beneficial” use under Homes of
Hope, Inc. v. Eastampton Township Land Use Planning Board, 409 N.J. Super. 330 (App. Div.
2009), the development of multi-family residential units which included one affordable housing
unit for each four market units did not create an “inherently beneficial use, which would justify a
use variance under N.J.S.A. 40:55D-70(d)(1) to allow a prohibited housing development in an
industrial/commercial zone. The Appellate Division found no precedent for using a small
inherently beneficial use as a means to approval of a larger non-inherently beneficial use. Thus,
the relaxed standards of Sica v. Board of Adjustment of Township of Wall, 127 N.J. 152, 164-66
(1992) did not apply. The project also did not meet the standard of Medici v. BPR Co., 107 N.J.
1 (1987) because the Township had chosen not to include this site in its affordable housing plan
and had specifically planned the area for industrial/commercial needs. The court, therefore,
concluded that the denial by the board of adjustment was not arbitrary, capricious or
unreasonable because the evidence was not overwhelming in favor of granting a use variance.
 INHERENTLYBENEFICIALUSE;DAYCARECENTER
Inman LLC v. Woodbridge Twp. Zoning Bd. of Adj. (Unpub. App.Div., Feb.6,2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a2997-12.opn.html
Plaintiff applied for a use variance under N.J.S.A. 40:55D-70(d) and several bulk variances to
build a daycare center on a parcel in a residential zone that had previously contained a singlefamily home. The board denied the application on the basis that the use variance could not be
granted without substantial detriment to the public good and without substantially impairing the
master plan. The board recognized that the use was inherently beneficial but found that the use
was not suited for the location of plaintiff's property, that the use was not needed in the
community (which already contained four or six other child care facilities in the vicinity of
16
plaintiff's property), and that there would be detrimental traffic conditions and safety issues. The
trial court upheld the denial, finding inter alia that plaintiff had failed to prove the need for
another child care facility in the community and that plaintiff had not shown the proposed use
was particularly suited to the property. The Appellate Division affirmed the denial on other
grounds. The court rejected the implication that plaintiff's application was not entitled to
consideration as an inherently beneficial use even if the community did not need a seventh
childcare center. The Municipal Land Use Law definition of inherently beneficial use
specifically includes childcare centers. The Appellate Division emphasized, however, that the
degree of need for the use in the community was not irrelevant and was to be considered in
relation to other factors in applying the Sica balancing test. The court concluded that the board's
weighing of these factors and denial of the requested use variance was not arbitrary, capricious
or unreasonable, and therefore sustained the denial.
 INTERPRETATION;USEVARIANCE;INHERENTLYBENEFICIAL
USE
Chai Lifeline Inc. v. Township of Mahwah (Unpub. App. Div. Sept. 2, 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a3335-12.opn.html
Chai Lifeline, Inc. (Chai) owns a house which is used as a retreat for clients whose lives have
been affected by life threatening illness or recent loss, and for counseling of recently widowed
women. Individuals stay for a couple of days. The property is in a residential zone. After
Mahwah's zoning officer informed Chai that its use of the property violated the local zoning
code, an appeal and use variance application was heard by the Mahwah Zoning Board. The
board agreed with the zoning officer that Chai’s use did not meet the definition of family as used
in its zoning ordinance and further denied the application for a use variance. On appeal, the
court determined that the definition of family in the local ordinance was constitutional. The
ordinance allowed not only a biological family but also a group of persons functioning as a
single housekeeping unit, whose relationship is of a permanent, stable and domestic character.
The court found substantial credible evidence in the record to support the Board's conclusion that
the property was being used as "transient housing" similar to a group home, motel, or
recreational facility. The court further upheld the Board's denial of the use variance and the
finding that the use by Chai was not inherently beneficial, because it benefits only those clients
who are allowed access and not the general public. Unlike a hospital or a school, there is no
general public benefit that supports the general welfare.
 INVERSECONDEMNATION
100 Paterson Realty LLC v. Hoboken (Unpub App. Div. Nov. 6, 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a1016-12.opn.html
Plaintiff sought to develop a parcel in a residential zone in Hoboken. After several attempts to
have different projects approved before both the zoning and planning boards, plaintiff voluntarily
abandoned each of his efforts under the belief that Hoboken would accept only parkland at the
site. Plaintiff claimed that the municipality’s actions were a de facto taking of land because they
prevented him from developing the property, even if temporarily, for other uses. The Appellate
17
Division concurred with the trial court that planning for the future use of land is not a
compensable taking. Plaintiff had not lost all beneficial use of the land, other than the potential
that the land might someday be subject of condemnation for parkland. Plaintiff’s voluntary
withdrawal of his applications was not government action which would trigger a taking
Although the Hoboken Master Plan called for this parcel to be placed into parkland, the only
actions taken by municipal governing body were an ordinance -- later rescinded -- to rezone the
area into parkland and resolutions – not acted upon -- for the acquisition of other parcels in same
area.
 PREEMPTION;WINDENERGY
Bayshore Regional Sewerage Authority v. Borough of Union Beach (Unpub. App.Div, Jul. 7,
2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a2086-12.opn.html
The Borough of Union Beach adopted a zoning ordinance, establishing requirements and
conditions for the development of renewable energy projects. The Bayshore Regional Sewerage
authority had for some time, sought to construct a wind turbine at its treatment plant located in
Union Beach. The authority had secured a CAFRA Permit from NJDEP and financing from
NJEIT. Two weeks after Union Beach adopted this ordinance, the Legislature enacted N.J.S.A.
40:55D-66.12, which established limitations on municipal regulation of the installation and
operation of small wind energy systems. The Appellate Division held that the Union Beach
ordinance was preempted by the State statute finding that the clear language of the statute
expresses a Legislative preference to thwart “unreasonable limits or hindrances” imposed by
local efforts to impede development of small wind energy projects. The court also rejected a
claim that the statute was unconstitutionally invalid “special legislation.”
 SIGNS:BANONDIGITALBILLBOARDS
B&J Equities, LLC v. Board of Adj. of Twp. of Franklin, ___ N.J. Super. ___ (App. Div. Oct.
17, 2014)
Franklin Township’s ordinance banning digital or “variable message” billboards, but allowing
static billboards, does not violate the First Amendment. The decision contains a thorough and
detailed analysis of the caselaw regarding time, place and manner restrictions and the regulation
of billboards.
18
MUNICIPALOFFICIALS
 MUNICIPALATTORNEY:WORKPRODUCTPRIVILEGE
O’Boyle v. Borough of Longport, 218 N.J. 168 (2014)
http://njlaw.rutgers.edu/collections/courts/supreme/a-16-12.opn.html
A private attorney representing a former municipal official in litigation brought by the plaintiff –
who had brought many other actions in the past -- exchanged certain confidential attorney-client
communications and attorney work-product with the borough attorney of Longport in order to
develop a joint strategy in defense of the current and anticipated litigation brought by this
common adversary. The Supreme Court expressly adopted the “common interest rule”, as
articulated by the Appellate Division in LaPorta v. Gloucester County Bd. of Chosen
Freeholders, 340 N.J. Super. 254 (App. Div. 2001). It found that a common purpose extended
the privileges of attorney-client confidentiality and attorney work-product to the particular
records requested by the plaintiff under the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1
to -13 and thus exempted those records from disclosure. The Court found that the “common
interest need not be identical” and, further, that the attorneys sharing the information need not be
involved in the same litigated matter. Rather, the focus must be on whether, at the time the work
was shared, the attorneys shared a common purpose. The Court also noted that, in contrast to
OPRA, the attorney-client privilege and work-product privilege may fail to protect against
disclosure under the common law right of access if there is a showing of “particularized need.”
Here, however, the court found that plaintiff had failed to demonstrate such a need for the
withheld materials.
 MUNICIPALJUDGE:DISCIPLINE
In the Matter of DiLeo, 216 N.J.449 (2014)
http://njlaw.rutgers.edu/collections/courts/supreme/d-66-12.opn.html
The municipal court judge in this matter denied each pro se defendant a public defender. The
judge then proceeded to conduct a trial even though the municipal prosecutor was not present.
The judge engaged in direct examination of the arresting officer and then permitted each
defendant to cross-examine the same officer. The arresting officer was then permitted to crossexamine each defendant. Although each defendant had witnesses they wished to produce, those
witnesses were unavailable on the day of trial. The defendants were all found guilty. The
Supreme Court held that the judge had not merely committed legal errors, but had violated
several canons of the Code of Judicial Conduct. These provisions included: Canon 1 (a judge
should observe high standards of conduct so the integrity and independence of the judiciary may
be preserved); Canon 2A (a judge should act at all times in a manner that promotes public
confidence in the integrity and impartiality of the judiciary); and Canon 3A (a judge should be
faithful to the law and maintain professional competence in it). The judge was therefore publicly
reprimanded.
19
 MUNICIPALJUDGE:INCOMPATIBILITYOFOFFICE
In the Matter of Advisory Letter No. 3-11 and Opinion No. 12-08 of the Supreme Court
Advisory Committee on Extrajudicial Activities, 215 N.J. 495 (2013)
http://njlaw.rutgers.edu/collections/courts/supreme/a-23-10.opn.html
A municipal court judge who also is an active professional comedian (using a stage name)
requested an advisory opinion as to whether he could be interviewed by a local newspaper about
his dual careers. In response the Advisory Committee on Extrajudicial Activities issued Opinion
12-08 stating that his comedic activities were incompatible with his judicial office primarily
because the comedy routine often included racist, ethnic, homophobic and other derogatory
jokes. In response to another request by the judge, the Committee further issued Advisory Letter
3-11 stating that his involvement in a reality television show – in which he appeared, under his
stage name, in various scenes as characters expressing racism, discrimination, lawlessness,
hatred, and other demeaning behavior-- was improper. The Supreme Court upheld the opinions
of the advisory committee; acknowledged that the municipal court judges are subject to the Code
of Judicial Conduct; and held that the bedrock principle of that code is the maintenance of the
integrity of the courts and the faith that the public places in it. Despite his contention that the
careers are separate, the court determined that, in the eyes of the public, the judge and the
comedian are the same. Newspapers report that the judge has resigned to continue his other
career.
20
ORDINANCES
 DUEPROCESS
Lanin v. Borough of Tenafly, 2014 WL 31350 (Unpub. D.N.J. 2014)
http://scholar.google.com/scholar_case?case=11841930282007640458
Plaintiffs own property on Downey Drive in Tenafly. Tenafly adopted several traffic and
parking measures related to Smith School which was adjacent to Downey Drive. . One ordinance
made Downey Drive one-way during school hours. A second ordinance eliminated parking on
the upper portion of Downey Drive. A third ordinance allowed a sidewalk to be constructed on
the south side of Downey Drive and created a "Student Drop-Off Pick-Up Zone." At the time the
Amended Complaint was filed, a second sidewalk on the north side of the street was planned (it
has since been completed). Plaintiffs contended that their property rights had been affected and
that they had been denied procedural due process under the United States Constitution because
the governing body had given notice of its hearing only by the required statutory publication of
the ordinance and had not given plaintiffs “direct and actual notice.” This count survived a
motion to dismiss under FRCP 12(b)(6). In refusing to dismiss the court said: “Although notice
by publication satisfies New Jersey state law, it does not necessarily follow that it satisfies the
due process clause. To succeed on this claim, the Plaintiffs will have to show, inter alia, that
they lacked actual notice; that this constructive notice fails the Mullane standard; and that some
cognizable right was affected by the lack of direct notice.”
Other counts survived as well. The council held a hearing about the acceptance of a planners
report but plaintiff alleged that their due process rights had been violated because they had been
denied the right of cross-examination. A count alleging conspiracy between the governing body
and the board of education as to traffic on Downey Drive was also allowed to proceed on the
assumption that the plaintiffs had a constitutionally protected right. The court also refused to
dismiss a count alleging that under New Jersey law, the board of education had breached its
fiduciary duty because a member of the board who voted for the board’s actions lived on the
street. Finally the court refused to dismiss a count seeking an injunction against enforcement of
the traffic ordinances because plaintiffs alleged that Tenafly had not followed one section of the
Manual on Uniform Traffic Control Devices which provides that municipalities maintain "good
public relations" by, inter alia, considering the needs of abutting property owners and making
"appropriate accommodations." All other counts of the 200 page complaint were dismissed but
the court refused to dismiss the complaint as overly long in violation of FRCP 8.
Editor’s Note: This case contains some troubling concepts. Municipalities often affect the
convenience of property owners by enacting parking or one way street regulations. The
implication that the property owners have a constitutionally protected property interest that
requires, under due process, an individualized notice over and above the notice required by
statutes for the adoption of ordinances runs contrary to much well-settled law. Perhaps by the
time this gets to trial the court will recognize that.
21
 REFERENDUM
In the Matter of an Initiative Petition for the Adoption of an Ordinance to Amend the Jackson
Township Administrative Code, 437 N.J.Super, 203 (App.Div. 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a0517-13.opn.html
In Jackson, an initiative petition was filed seeking an ordinance creating a director of law who
would, additionally, provide legal service to the township’s board of education. The governing
body unanimously rejected the proffered ordinance and filed an action for a declaratory
judgment as to the validity of the initiative petition because of the board of education provision.
The Appellate Division upheld a trial court decision declaring the board of education provisions
to be invalid because they would be contrary to the Uniform Shared Services and Consolidation
Act, N.J.S.A. 40A:65-1 to -35 --which requires an agreement between local units before sharing
services. The Appellate Division also upheld, on different grounds, the trial court’s refusal to
apply the ordinance’s severability clause to excise the invalid provisions and allow the
referendum on the initiative to proceed. The Appellate Division said that the provisions of the
Faulkner Act call for the submission of the proposed ordinance to the electorate "in substantially
the form requested" and not in any revised form that might emerge from litigation with
provisions stricken that might have led voters to sign the petition in the first place. The Appellate
Division also rejected the petitioners’ argument that a pre-election substantive judicial review
should not be allowed. The court relied upon City of Newark v Benjamin, 144 N.J. Super. 58
(Ch. Div.), aff’d o.b. 144 N.J. Super.389 (App. Div. 1976), aff’d o.b., 75 N.J. 311 (1978). That
case had concluded that if a proposed ordinance is invalid on its face, it would be a useless
expenditure of effort and money to submit it to the electorate before its validity had been
determined.
 VALIDITY;HOURSOFOPERATION
Fullbrook v. Mayor and City Council Members of City of Camden (Unpub App. Div. Nov. 7,
2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a4536-12.opn.html
Camden adopted an ordinance limiting the hours of operation for restaurants and retail food
establishments located within 200 feet of residential zones. The stated purposes of the ordinance
were to improve the quality of life for residents, to decrease the incidence of arrests and criminal
activity, to discourage activities that compromised public safety of residents and to provide for
the efficient, effective and economic provision of scarce government resources for those
purposes. A number of individual business owners challenged the ordinance as arbitrary and
unreasonable. Following a bench trial which included witnesses on both sides, the trial court
ruled in favor of the city determining the plaintiffs had failed to carry their burden of
demonstrating the ordinance was arbitrary and unreasonable and, specifically, that the ordinance
did in fact improve “the quality of life for residents in residential areas.” The Appellate Division
affirmed, noting that the mere fact that plaintiffs had attempted to present evidence questioning
the impact of the ordinance on crime reduction did not, by itself, substantiate a claim of arbitrary
and unreasonable conduct.
22
PUBLICCONTRACTS
 PROCEDURE,MOOTNESS
Barrick v. State, 218 N.J. 247 (2014)
http://njlaw.rutgers.edu/collections/courts/supreme/a-8-13.opn.html
Applying well-settled law about a public agency’s ability to award a contract to a bidder whose
proposal deviates from the bid specifications for the lease of office space, the Supreme Court
upheld the determination by the Director of the New Jersey Division of Property Management
and Construction to waive what he considered to be a non-material defect in the bid in question
and to award the contract to the low bidder. What is of particular interest is the Court’s
admonishment to unsuccessful bidders who fail to seek a stay while prosecuting their appeal, as
happened here. By the time the case was heard in the Appellate Division, the successful bidder
had entered into the contract and had expended substantial resources (including securing a multimillion dollar loan) to bring its property into compliance with the Department’s specifications.
The Supreme Court stated: “We caution against any expectation that a merits review will be
readily available to such unsuccessful bidders who sit on their right to seek a stay and simply
hope for a remedy down the road. The appellate process is equipped for stay applications in
bidding disputes and that relief ought to be pursued as a matter of course.” (218 N.J. at 264,
emphasis added).
 REJECTINGALLBIDS
Surety Mechanical Services v. Bridgeton Bd. of Educ. . (Unpub App. Div. Dec. 11, 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a2981-12.opn.html
Plaintiff, the apparent lowest qualified bidder, challenged a rejection of all bids by a board of
education on an HVAC project. When it rejected all bids, the Board indicated that it wished to
modify the scope of one element of the project and re-bid. The modification made for re-bidding
was minor, causing plaintiff to argue that there had been no legitimate basis to re-bid the project.
The board’s business administrator testified that the bids were over the budgeted amount for the
project. The court sustained the board. It noted that the Public School Contracts Law, N.J.S.A.
18A:18A-1 et seq. permits a board to reject bids when the lowest bid substantially exceeds the
cost estimates or appropriation for the project, and that nothing in the law compels the board to
specify its reason for rejecting all bids.
23
PUBLICMEETINGS
 PUBLICMEETINGMATERIALS;PUBLICRECORDS
Opderbeck v. Midland Park Bd. of Ed. (Unpub. Law Div. Bergen County, BER-L-8571-13,
Dec. 24, 2013) Doyne, A.J.S.C.)
A board of education posted its agendas electronically on its website the Friday before each
meeting. Plaintiff requested that in addition to posting the agenda, the board also post or
otherwise make available in electronic format all attachments and addenda to the agendas
(except those protected from disclosure because of an exemption or privilege) so the public could
be reasonably informed prior to the meetings. Plaintiff asserted that this should not create any
undue burden on the board because these documents were already scanned and sent to the
members electronically. The board nonetheless refused to provide anything other than the agenda
itself, citing a 1976 Attorney General opinion that the word “agenda” under the Open Public
Meetings Act (OPMA), N.J.S.A. 10:4-7 et seq.) referred solely to the list of items to be discussed
or acted upon at the meeting, and noting the absence of any case law to the contrary. Judge
Doyne disagreed, finding that the board’s failure to provide attachments and supplemental
materials rendered the agendas virtually meaningless. The court found that the attachments were
not merely supplemental, but were integral to the agendas. The court concluded that the failure to
provide these attachments constituted a failure to comply with the OPMA’s notice requirements
and therefore ordered the board to produce any non-privileged attachments electronically with
the agendas. The court declined, however, to award plaintiff his requested attorney’s fees
because OPMA does not include any fee-shifting provisions.
 RELIGIOUSFREEDOM
Town of Greece, NY v. Galloway, ___U.S. ___, 134 S.Ct.1811, ___ L.Ed. 2d ___, 2014 WL
1757828 (2014)
http://scholar.google.com/scholar_case?case=7055152929494104645
The Town of Greece, NY created a practice of inviting clergy and others to open the meetings of
the town council with a prayer. A clerk to the council asked clergy at various churches in the
town for their availability to lead the prayer and scheduled their appearances at the meeting.
After some questions were raised, people who wanted to offer the prayer were also put on the
list. Most of the clergy were Christian because the town had primarily Christian churches.
However, prayers have been offered by people of different faiths. The prayers were not screened
by anyone on behalf of the town and there was no evidence of discrimination. Some of the
clergy offered prayers with Christian references. In some cases, clergy asked people to stand or
to bow their heads.
The Supreme Court held that a municipality does not violate the
Establishment Clause of the First Amendment to the United States Constitution by opening its
meeting with a prayer. That type of prayer has been upheld when done at the beginning of
Congress and sessions of a state legislature and can fairly be said to be a tradition of the United
States. Such a prayer, in the circumstances of this case, does not compel citizens to engage in a
24
religious observance. The prayer does not have to be nonsectarian to comply with the
Establishment Clause in the circumstances of this case.
 RESOLUTIONAUTHORIZINGCLOSEDSESSION
New Jersey Foundation for Open Government Inc. v. Island Heights Board of Education
(Unpub. Law Div., Ocean, OCN-L-703-14, Aug26, 2014, Grasso, A.J.S.C.)
Judge Grasso held that a generalized resolution for a closed session to discuss matters “including
but not limited to confidential student information, personnel matters, contracts and litigation”
does not satisfy the requirements of the Open Public Meetings Act (OPMA), N.J.S.A.10:4-13.
Such a general resolution lacked sufficient specificity to inform the public of the nature of the
closed session and left the public to guess as to which of the subjects would be discussed. The
Court also found that the Board had improperly discussed matters in the closed session that
should have been discussed in public session. Examples include discussion of a solar panel
project, tuition rates and the naming of the district’s multi-purpose room. The court declined to
invalidate the actions taken on those items because the violations were technical ones due to
oversight rather than willful ones undermining the fundamental principles of OPMA. It ordered
future compliance and the opportunity to ratify in public the decisions made in private session.
 RIGHTTOPRIVACY;DRUGTEST;OPENPUBLICRECORDS
Connelly v. Borough of Eatontown (Unpub. App. Div. April 8, 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a0728-12.opn.html
Connelly, an employee of Eatontown, appealed a disciplinary finding by the Borough
Administrator to the governing body. At the time of the governing body hearing Connelly, after
receiving a notice served on him pursuant to Rice v. Union Cty. Reg. High Sch. Bd. of Educ., 155
N.J. Super. 64 (App. Div. 1977), certif. denied, 76 N.J. 238 (1978), exercised his right for the
hearing be held in public. During the hearing, a prior discipline based upon a positive finding on
a random drug test was made part of the record. The disciplinary matter was later settled, but
Connelly filed suit claiming among other things, invasion of privacy for release of the drug test
results. The court upheld the summary judgment in favor of Eatontown, finding that Connelly
had voluntarily exposed his drug test to public view by requesting that the governing body
conduct his disciplinary hearing in public, thereby eliminating any reasonable expectation of
privacy.
25
PUBLICRECORDS
 BIDSPECIFICATIONS
Bozzi v. City of Atlantic City 434 N.J.Super.326 (App. Div.2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a0532-12.opn.html
In the absence of specific authority in the Local Public Contracts Law (LPCL), N.J.S.A. 40A:111 to-51, a prospective bidder who makes a written request under the Open Public Records Act
(OPRA) N.J.S.A. 47:1A-1 to-13 is entitled to a copy of bid specifications at the rate that the local
government is allowed to charge for such records under OPRA, rather than at any flat fee set
forth in the bid specifications. In this case the prospective bidder did not make a written request
for the specifications and paid the flat fee. He later sought a refund of $21.55 plus counsel fees
and costs for a violation of OPRA. The Appellate Division held that, without a written request,
the prospective bidder was not entitled to relief under OPRA so the trial court’s judgments
awarding monetary relief for the $21.55 reimbursement and $10,096.05 in counsel fees were
reversed. In a footnote the court distinguished, on its facts, Dugan v. Camden County Clerk’s
Office, 376 N.J. Super. 271 (App. Div.), certif. denied, 184 N.J. 209 (2005) in which the court
had held that no written request was required for deeds, mortgages or lien documents which a
county clerk’s office was obligated to keep in a publicly accessible space for self-service use.
Even though the case between the parties had been resolved by that ruling, the Appellate
Division “for completeness” ruled that the bid specifications were public records and that no
provision of the LCPL, other than those related to “competitive contracting” N.J.S.A. 40A:114.5(a), --which allows $50 or the cost of reproduction whichever is greater-- gave a contracting
entity authority to charge a fee for copying greater than that specified in OPRA. The court
recognized that “bid specifications may not be the type of government records the Legislature
had in mind when adopting OPRA” but, if so, left it to the Legislature to fix the law.
 BREADTHOFSEARCHFORRECORDS
Burke v. Ryan, 2013 N.J. Super. Unpub. LEXIS 2331(Law Div., Ocean, OCN-L-1642-13 Sept.
17, 2013, Grasso, A.J.S.C.)
Plaintiff filed requests pursuant to the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et
seq., correspondence and communications between officials or employees of Mantoloking and
officials or employees of the State of New Jersey and officials or employees of Ocean County
from the date of Superstorm Sandy to the date of the request regarding closing and opening roads
in the Borough of Mantoloking. The court rejected the denial of these requests by the borough
clerk as being overbroad. The clerk’s original effort which included seeking documents from
only the mayor, police chief and special counsel did not go far enough, in the opinion of the
court. The trial court went on to recommend that the borough create a “group contact” list for all
of the borough’s twenty-one (21) e-mail accounts which would include all department heads.
The trial court further recommended the adoption of a written records retention policy. The
matter was remanded to the clerk to conduct a further search. The borough, -- still at the time of
26
the decision under a state of emergency caused by the storm-- was given the right to seek
reasonable extensions of time to complete the search.
 CONFIDENTIALITY
Paff v. Borough of Cliffside Park (Unpub. Law Div., Bergen, BER-L-279-, Feb 28, 2014,
Doyne, A.J.S.C)
Judge Doyne held that settlement documents in a lawsuit involving the retirement of a police
chief and a terminal leave agreement are not exempt personnel records under the Open Public
Records Act (OPRA) N.J.S.A. 47:1A-1 to-13 and that providing a summary of employee payroll
records rather than the actual documents does not meet the OPRA requirements. He held that the
documents are also disclosable under common law. Further, using generic references and one
word descriptions as to why there is going to be a closed session and waiting for two or three
months to produce closed session minutes constitute substantive violations of the Open Public
Meetings Act, N.J.S.A. 10:4-6 to -21.
 GENERALLY
Paff v. Township of Little Egg Harbor (Unpub. Law Div. Ocean County, Docket No. OCN-L949-14 PW, May 27, 2014, Grosso, A.J.S.C.)
Telephone and radio recordings of the dispatch of police officers to a dwelling on an incident
that subsequently became the subject of an internal affairs investigation are subject to release
under the Open Public Records Act (OPRA). N.J.S.A. 47:1A-1 et seq. Plaintiff also claimed the
municipal clerk could not delegate responsibility for responding to OPRA requests to the police
records clerk, but dismissed this aspect of his complaint upon the representation of the municipal
counsel that, going forward, the township clerk would have the final say in responding to OPRA
requests.
 INVESTIGATORYRECORDS
Ganzweig v. Township of Lakewood, 2013 N.J. Super. Unpub. LEXIS 2537 (Law Div., Ocean,
L-2392-13, Sept. 26, 2013, Grasso, A.J.S.C.)
By request under the Open Public Records Act (OPRA) N.J.S.A. 47:1A-1 et seq., Ganzweig
sought to compel Lakewood and the township clerk to produce all telephone calls to and from
the Lakewood Police department dispatch and watch command and “[a]ll radio, audio, video and
records including log of incident” relating to two traffic incidents. The township clerk denied the
request because “it is an Internal Affairs Investigation.” The court rejected the township’s
reason and found that it failed to prove that it had properly denied the request under any
exception recognized by OPRA. The township argued that if digital or other recordings come
into existence, but an internal affairs investigation, unlike a civil or criminal investigation, is
later begun based on the recorded events, the recordings and transmissions of the event itself
move outside of OPRA’s reach pursuant to the Attorney General’s Internal Affairs Policy &
Procedures guidelines. The court disagreed finding that the plain language of OPRA makes it
clear that information that later forms the basis of an investigation does not become retroactively
27
exempt from OPRA’s disclosure requirement. N.J.S.A. 47:1A-3. Further, the court found that the
recordings sought by the plaintiff were a record of the event---not the internal affairs
investigation. The court directed that the township comply with Ganzweig’s request.
Paff v. Bergen Cty. (Law Div., Bergen, L-7739-14, Oct. 16, 2014, Doyne, A.J.S.C.)
Paff requested a series of records related to “complaints brought, either internally or by an
inmate or member of the public, against corrections officers who work at the Bergen County
Jail.” The Bergen County Sheriff’s Office produced an “Internal Affairs Summary Report” for
2012, one for 2013, and an “Internal Affairs Requirement 10 Summary” for 2012-2014. The
name of every employee and complainant was redacted from the documents, with no
accompanying explanation for the redactions. The court held that the Sheriff’s Office had
improperly denied plaintiff’s request and ordered the release of the unredacted documents. The
court rejected the Sheriff’s Office’s argument that the documents were protected from disclosure
pursuant to the Attorney General Guidelines, specifically, the Internal Affairs Policy and
Procedures (“IAPP”), holding that the AG Guidelines do not constitute a recognized exception
under OPRA. In so doing, the court specifically rejected the GRC’s decision in Rivera v.
Borough of Keansburg Police Dep’t., GRC Complaint No. 2007-222 (June 29, 2010)); it also
noted that the IAPP was designed for implementation by law enforcement agencies, and that
other agencies, such as state and county correctional facilities, are under no obligation to adopt
the policy. Lastly, the court held that plaintiff was also entitled to the unredacted documents
under the common law right to know.
 REDACTION
American Civil Liberties Union of New Jersey v. New Jersey Dept. of Criminal Justice 435
N.J.Super. 533 (App. Div. 2014)
http://njlaw.rutgers.edu/collections/courts/appellate/a3381-12.opn.html
In responding to a request from the ACLU under the Open Public Records Act, (OPRA),
N.J.S.A. 47:1A-1 et seq., for records pertaining to all forms of Automatic License Plate
Recognition (ALPR) technology, the records custodian of the State Division of Criminal Justice
redacted portions of a record which the custodian deemed not to be relevant to the request. Parts
of a grant application pertaining to recidivism and discharge planning for juvenile offenders were
redacted but the parts pertaining to ALPR were produced unredacted. The Division asserted no
privilege or exemption under OPRA with respect to the redacted material, but only asserted its
irrelevance. On an appeal by the ACLU, the court held that the Division’s redaction policy
violated OPRA, and that the records should not have been redacted.
 UNAUTHORIZEDSERVICECHARGEFORREDACTION;
COUNSELFEES
Nummermacker v. City of Hackensack (Unpub. Law Div. Bergen County, Docket No. BER-L2153-14, June 6, 2014, Contillo, P.J.Ch.)
Upon receipt of a request under the Open Public Record Act (OPRA), N.J.S.A. 47:1A-1 et seq.
for copies of legal bills, the Hackensack City Clerk advised the requestor that the city would
28
charge $450 for time involved for the city attorney to review the 300 pages of bills requested.
The requestor did not pay the fee and began suit. Seven days after the filing of the complaint,
the city provided all of the requested documents to plaintiff without requiring the $450 fee
because, the city said, it had determined that the same documents had been previously provided
in unredacted form to another requestor and, that, therefore, the fee was unnecessary. Judge
Contillo determined that plaintiff was entitled to attorney’s fees as a prevailing party under
N.J.S.A. 47:1A-6. The court found that if the records custodian requires the assistance of
counsel, then the cost of those legal services is to be borne by the municipality because, in that
case, there is no applicable fee shifting mandate in OPRA. The requestor was therefore a
catalyst and the prevailing party and entitled to attorney’s fees.
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REDEVELOPMENT
 BONDS;REFERENDUM
In re Petition for Referendum to Repeal Ordinance 2354-12 of the Township of West Orange,
Essex County (Unpub. App.Div. Jul.23, 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a6181-11.opn.html
West Orange has, for years, been attempting to redevelop a battery factory formerly operated by
Thomas Edison, the “Wizard of Menlo Park.” It created a redevelopment area and entered into a
contract with a redeveloper. It adopted a bond ordinance authorizing $6.3 million of general
improvement bonds, identifying the Edison Battery Building as a part of a redevelopment area.
Residents filed a petition for a referendum on the ordinance but the clerk rejected it, in part
because of a provision of the Local Housing and Redevelopment Law, N.J.S.A. 40A:12A-28.,
which prohibits such referenda on the issuance of bonds for redevelopment. The plaintiffs also
challenged the ordinance because it had not received the prior approval of the local finance board
under N.J.S.A. 40A:12A-37(d). The trial court dismissed the complaint as untimely under R.
4:69-6, because it had not been filed within 45 days of adoption of the ordinance and because
plaintiffs had not shown that the ordinance was invalid or subject to referendum. The Appellate
Division held that this was not a general bond ordinance that might have been subject to
referendum, but rather a redevelopment bond ordinance under N.J.S.A. 40A:12A-28, which was
not. In addition, the court held that the complaint was not timely. A petition for certification has
been granted.
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STREETSANDSIDEWALKS
 MUNICIPALSERVICESACTREIMBURSEMENTS
Leisure Village Association Inc. v. Township of Lakewood (Unpub Law Div., Ocean, L-168411, Jan. 10, 2014, Grasso, A.J.S.C.)
The Township of Lakewood was required either to reimburse a homeowner’s association or to
provide service for leaf collection and snow removal on roads in Leisure Village pursuant to the
Municipal Service Act, N.J.S.A 40:67-23.3(a). Leisure Village has three tiers of roads and
Lakewood was willing to reimburse only for the first- and second-tier roads, which include 5.64
miles. The second-tier roads are shown on the tax map with street names. The third-tier roads—
10.39 miles -- provide motor vehicle access to the living units. They do not have street names.
Instead, the living units on these roads carry the mailing addresses of the first- or second-tier
roads to which they connect. Signs indicate the house numbers located on each third-tier road.
Like second-tier roads, third-tier roads are roughly thirty (30) feet wide and have curbs and
drainage facilities. Most third-tier roads have a single entrance and each third-tier road services
multiple residential units. In addition to the curbs and drainage, some of the third-tier roads have
islands, utility poles, and bus stops. Some of those roads have driveways off them and others
have parking slips. Some open up into cul-de-sacs with car ports. After hearing extensive
testimony the court determined that the third-tier roads were “roads” eligible for reimbursement
rather than shared driveways which would not be eligible. The court rejected the municipal
argument that the third-tier roads are not “streets” under the Residential Site Improvement
Standards (RSIS).
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TAXATION
 TAXSALECERTIFICATE;LIEN
In re: Princeton Office Park v. Plymouth Park Tax Services, LLC, 218 N.J. 52 (2014)
http://njlaw.rutgers.edu/collections/courts/supreme/a-107-11.opn.html
Princeton Office Park (POP) fell behind in payment of real property taxes, and Plymouth Park
Tax Services (Plymouth) purchased the tax sale certificate at a municipal tax lien auction. After
Plymouth filed an action to foreclose POP’s right of redemption, POP filed for bankruptcy. Over
Plymouth’s objection, the bankruptcy judge approved a reorganization plan for POP that allowed
POP to repay Plymouth at a 6% rate of interest rather than at the statutory rate of 18%. The
bankruptcy judge held that the lien acquired by Plymouth was not a tax claim under the
bankruptcy law because it was not a tax lien... The federal district court agreed, but the U.S.
Court of Appeals posed the question to the New Jersey Supreme Court as to whether, under New
Jersey law, the holder of a tax sale certificate holds a tax lien. . The Supreme Court accepted the
question pursuant to Rule 2:12A and held that the holder of a tax sale certificate under the Tax
Sale Law, N.J.S.A. 54:5-1 to 137 possesses a tax lien on the property.
32
TORTS
 IMMUNITY;LANDOWNERLIABILITYACT
Lareau v. Somerset County Park Commission (Unpub App. Div. Oct. 9, 2013)
http://njlaw.rutgers.edu/collections/courts/appellate/a1227-12.opn.html
The Somerset County Park Commission, a public entity, had immunity under the Landowner’s
Liability Act (LLA), N.J.S.A. 2A:42A-2 to -10, for injuries suffered by a trespasser on a public
golf course. The plaintiff slipped and fell on a bridge on the golf course that had been carpeted
but had become wet. The course was closed during the winter months in which the accident
occurred and the plaintiff was walking on the course for the ostensible purpose of calibrating a
GPS system. The court reviewed all of the cases under the LLA and concluded that the purposes
of the act were to provide immunity to owners of land that are “rural and semi-rural or open
tracts of land” that have difficulty guarding against intermittent trespassers. The fact that the
property was improved with a golf course was irrelevant because the LLA was intended to apply
to both improved and unimproved land. Extending immunity to the Park Commission would
encourage the use of the lands by the public, which is one of the purposes of the LLA. Because
the Park Commission was immune under the LLA, the court held that it was also immune under
the provision of the Tort Claims Act (N.J.S.A. 59:2-1(b)) which preserves any other common law
or statutory immunities that a public entity may have.
 IMMUNITY;MUNICIPALPROFESSIONALS
Bezr Homes, LLC v. Township of E. Greenwich (Unpub App. Div. Oct. 21, 2013)
East Greenwich retained Kenneth Ressler and Remington & Vernick Engineers (“Remington”)
to serve as the Township Engineer. The court held that for purposes of the Tort Claims Act
(“TCA”)---specifically, the “relative nature of the work” test---Remington was a municipal
employee entitled to the immunities set forth in the TCA even though Remington was an outside
consultant. Among other things, the court noted that Remington was retained to fill a statutory
office and therefore its work constituted an integral part of the Township’s business.
 STATECREATEDDANGER
Van Orden v. Borough of Woodstow,. --- F.Supp.2d ---- 2014 WL 941449 (D.N.J. April 4,
2014)
http://scholar.google.com/scholar_case?case=8510586495839017236
Celena Sylvestri was driving on Route 40 in Salem County in the early morning hours of August
28, 2011, when her car was swept away by fast moving water, resulting in her death. The water
flowed from a floodgate which Woodstown, Pilegrove and the Woodstown Police Department
had opened to relieve pressure and control floodwaters as Hurricane Irene approached. Although
Defendants had announced their intention to open the floodgates a few hours beforehand, they
did not block the road or take any steps to prevent drivers from entering the path of the
33
floodwater. The complaint by Sylvestri’s estate and her mother survived a motion to dismiss.
The court found that the pleadings contained sufficient factual matter, which if accepted as true,
stated a facially plausible claim for relief under the “state created danger doctrine”, the elements
of which are: 1) the harm ultimately caused was foreseeable and direct; 2) the state actor acted
with a degree of culpability that shocked the conscience; 3) a relationship between the plaintiff
and the state existed, such that the plaintiff was a foreseeable victim of the defendants’ acts; and
4) the state actor affirmatively used his or her authority in a way that created a danger to the
citizen or rendered the citizen more vulnerable to danger than had the state not acted at all.
34
UTILITIES
 SEWERSERVICE;NEIGHBORINGMUNICIPALITIES
TMB Partners v. Township of Millburn (Unpub. App. Div. June 2, 2014)
http://scholar.google.com/scholar_case?case=690499002155844999
A developer sought to redevelop a site in Livingston into a 62 unit apartment project with set
asides for low and moderate income housing. Livingston had a sewer agreement by which
Millburn would accept effluent from the site but that agreement expressly excluded apartment
houses and limited the number of housing units to 10 overall. Livingston wanted the Millburn
hookup for the project because the Livingston engineer said that a hook up to the Livingston
system would require a significant financial expenditure, primarily for the construction and
installation of pumps. Millburn, through its engineer, said that were Millburn to accept any more
wastewater flooding would occur in Millburn during rainstorms and, in any event, Livingston’s
sewer system had sufficient capacity to accept the additional load. When Millburn rejected the
application for a hook-up, the developer filed an action against both municipalities alleging a
violation of Mount Laurel principles because, the developer said, the real purpose of the rejection
by both was to discriminate against the construction of low income housing not to avoid the cost
of sewer hook-ups. On summary judgment, the trial court found that Millburn’s failure to allow
the hook-up was in violation of the Mount Laurel doctrine and ordered the sewer hook-up to
proceed. The Appellate Division reversed because the trial court had failed to acknowledge a
genuine factual dispute over the actual capacity of the sewer systems in both municipalities and
to render any opinion on whether the terms and conditions of the sewer agreement were
enforceable against Millburn. The court also noted that the Mount Laurel doctrine cannot be
used as a means to impose a requirement (such as sewer hook-ups) on another municipality
unless there is no other means to provide the service. This also presented an issue of fact.
35