In Re: Petition for Referendum to Repeal Ordinance 2354-12 of the Tp. of West Orange(073069)
127 A.3d 1277
| N.J. | 2015Background
- West Orange Township adopted Ordinance 2354-12 on March 20, 2012 (published March 22, 2012), authorizing $6.3 million in redevelopment bonds and pledging the township’s full faith and credit.
- Residents filed a referendum petition to suspend the ordinance; the Township Clerk rejected the petition twice, concluding (1) the Local Redevelopment and Housing Law (LRHL) bars referenda for such ordinances and (2) insufficient valid signatures.
- Fifty-three days after final publication, plaintiffs filed an action in lieu of prerogative writs challenging the ordinance’s validity, arguing the Township failed to obtain required Local Finance Board approval.
- The trial court dismissed the action as untimely under N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11); the Appellate Division affirmed. The Supreme Court granted certification limited to timeliness and, if necessary, the Local Finance Board issue.
- The Supreme Court held the prerogative-writs challenge was time-barred because N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11) require challenges to bond ordinances within 20 days of final publication; Rule 4:69-6(c)’s enlargement power yields to the statute except in extraordinary circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether plaintiffs’ prerogative-writs action challenging the bond ordinance was timely | (Plaintiffs) The filing of a referendum petition tolled the 20-day period; alternatively, the court should enlarge time under Rule 4:69-6(c) in the interest of justice | (West Orange) N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11) require filing within 20 days of publication; no tolling for a referendum petition; enlargement is inappropriate | Action was untimely. Challenges to redevelopment bond ordinances must be filed within 20 days of final publication; enlargement is allowable only in most extraordinary circumstances (not present here). |
| Whether a LRHL redevelopment bond ordinance is subject to referendum | (Plaintiffs) The LRHL did not bar referendum here; petition was appropriate | (West Orange) N.J.S.A. 40A:12A-28 expressly exempts LRHL ordinances from initiative or referendum | Ordinance is a redevelopment bond ordinance and not subject to referendum under N.J.S.A. 40A:12A-28. |
| Whether Rule 4:69-6(c) permits tolling/enlargement contrary to N.J.S.A. 40A:2-49 | (Plaintiffs) Court should use Rule 4:69-6(c) to enlarge time in the interest of justice | (West Orange) Statute’s conclusive presumption and estoppel after 20 days foreclose enlargement for bond ordinances | Rule 4:69-6(c) cannot be used to override N.J.S.A. 40A:2-49’s repose except in extremely extraordinary and rare circumstances. |
| Whether the Court should decide if Local Finance Board approval was required | (Plaintiffs) Court should resolve legality (lack of Local Finance Board review) if timeliness resolved in plaintiffs’ favor | (West Orange) Timeliness defeats the case; merits need not be reached | Court did not decide the Local Finance Board approval issue because the challenge was untimely. |
Key Cases Cited
- Occhifinto v. Olivo Constr. Co. LLC, 221 N.J. 443 (de novo review for statutory and rule construction)
- Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366 (trial court legal interpretations reviewed de novo)
- Tumpson v. Farina, 218 N.J. 450 (right of referendum under N.J.S.A. 40:69A-185)
- In re Ordinance 04-75, 192 N.J. 446 (Legislature may exempt categories of ordinances from referendum)
- Watters v. Mayor & Common Council of Bayonne, 89 N.J. Eq. 384 (purpose of statutory limitation to prevent cloud on bond validity)
- Jersey City Educ. Ass'n v. City of Jersey City, 316 N.J. Super. 245 (marketability and repose concerns for municipal bond ordinances)