89 A.3d 1270
N.J. Super. Ct. App. Div.2014Background
- In May 2013, Borough of West Wildwood enacted Bond Ordinance No. 522 to finance capital improvements totaling $470,250.
- Plaintiff Committee of Petitioners for the Repeal of Ordinance No. 522 sought a referendum and submitted a petition with signatures to the Acting Municipal Clerk, who rejected for notarial defects and for lacking five committee member names.
- Plaintiff amended the petition to add the fifth committee member and correct notarial dates; the Clerk again rejected, deeming corrections insufficient.
- Judge Mendez held the petition should be accepted and directed the referendum be placed on the November 2013 ballot, with a stay pending appeal.
- On appeal, the Borough argued untimeliness and challenged legal standards; the court affirmed, holding Home Rule Act procedures govern referenda on indebtedness and do not require a five-member Committee of Petitioners under Walsh Act.
- The court concluded the Clerk’s rejection of corrected notarial amendments was arbitrary and capricious, improperly restricting voter participation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the petition timely under the statutory time bar? | Plaintiff contends equitable enlargement under Rule 4:69-6(c) applies. | Defendants insist strict twenty-day limit controls. | Equitable enlargement permitted; not timely bar overridden. |
| Does Walsh Act (N.J.S.A. 40:74-5) require a five-member Committee of Petitioners for indebtedness referenda? | Walsh Act requirement not applicable to Home Rule Act referendum for indebtedness. | Committee requirement applies to petition for referendum. | Home Rule Act governs; five-member Committee not required for indebtedness referenda. |
| Was Frederick's rejection of the corrected petition arbitrary and capricious regarding notarial corrections? | Corrections could be effected by crossing out and initialing errors per notary guidance; clerk failed to explain and rejected without guidance. | Notaries should not amend certificates; corrections were improper. | Clerk acted arbitrarily and capriciously by not providing guidance and by unexplained rejection. |
Key Cases Cited
- In re Petition for Referendum on City of Trenton Ordinance 09-02, 201 N.J. 349 (N.J. 2010) (court upheld referendum rights on municipal indebtedness.)
- Margate City, 424 N.J. Super. 242 (App.Div. 2012) (Home Rule Act governs indebtedness referenda; Walsh Act provisions limited.)
- Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474 (1974) (deference to factual findings; standard for review.)
- D’Ascensio v. Benjamin, 142 N.J. Super. 52 (App.Div. 1976) (arbritrary and capricious exercise of discretionary authority.)
- Hopewell Valley Citizens’ Group, Inc. v. Berwind Prop. Group Dev. Co., 204 N.J. 569 (2011) (public interests and timely enforcement considerations in referenda.)
- Schack v. Trimble, 28 N.J. 40 (1958) (equitable expansion of time when interests of justice require.)
- In re Ordinance 04-75, 192 N.J. 446 (2007) (liberal construction of right to referendum on local measures.)