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Administrative Regulations Trishka Waterbury MASON, GRIFFIN & PIERSON, P.C. 101 Poor Farm Road Princeton, New Jersey 08540 (609) 436-1211 [email protected] New Jersey League of Municipalities and New Jersey Institute of Local Government Attorneys Joint Session CURRENT ISSUES THAT ELECTED AND APPOINTED OFFICIALS NEED TO KNOW: A SAMPLING OF 2009-2010 DECISIONS IMPACTING MUNICIPALITIES New Jersey State League of Municipalities Annual Convention Atlantic City, New Jersey November 18, 2010 CASE SUMMARIES1 A Sampling of 2009-2010 Court Decisions Affecting Municipalities AFFORDABLE HOUSING THIRD ROUND RULES (PART II) In re Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, ___ N.J. Super. ___ (App. Div. Oct. 8, 2010) http://lawlibrary.rutgers.edu/courts/appellate/a5404-07.opn.html In response to multiple challenges to the Council on Affordable Housing (“COAH”)’s second set of third round rules, the Appellate Division invalidated COAH’s growth share methodology, directed COAH to adopt new third round rules that use a methodology for determining prospective need similar to the methodologies used in the first and second rounds, and required COAH to recalculate its projected state-wide need using up-to-date data. The court also ruled that municipally- sponsored 100% affordable housing site must show site control, site suitability, source of funding and a proposed developer; ruled that bright-line standards must be established to provide sufficient incentives for inclusionary developments; invalidated prior round rental bonuses for developments that were not built within a reasonable time frame; upheld bonuses for smart growth and redevelopment, but invalidated third round compliance bonuses; upheld COAH’s prior round numbers; upheld its prior ruling regarding the reallocation of present need from urban municipalities to suburban and other municipalities; and ruled that incidental impacts of inclusionary development on municipal finances do not constitute a mandatory expenditure of municipal funds in violation of the Fair Housing Act, nor do 100% municipally-sponsored affordable housing projects. Petitions for certification have been filed by the “Twenty Towns,” the New Jersey State League of Municipalities, Fair Share Housing Center, and ISP Management Company. ALCOHOLIC BEVERAGES SPECIFIC PERFORMANCE Kalogeras v. 239 Broad Avenue, LLC, 202 N.J. 349 (2010) http://lawlibrary.rutgers.edu/courts/supreme/a-42-09.opn.html The requirement for governmental approval is an implied condition in all agreements for the transfer of liquor licenses. Even if the contract does not contain an express provision to that effect, the contract can be specifically enforced but only to the extent that the parties would be required to act, in accordance with the implied covenant of good faith and fair dealing, with respect to the statutory condition of approval. To the extent that 73 Bowling Center v. Aristone, 192 N.J.Super. 80 (App.Div. 1983) is interpreted otherwise, it is disapproved. 1The case summaries contained in this outline were prepared by the editors of the Local Government Law Review, and have been reprinted here by permission of the Institute of Local Government Attorneys. The summaries cover decisions issued from October 2009 through September 2010, plus a few recent additions. The summaries are organized by topic and subtopic, in roughly alphabetical order. -1- CIVIL RIGHTS FIRST AMENDMENT Besler v. Board of Education of West Windsor-Plainsboro Regional School District, 201 N.J. 544 (2010) http://lawlibrary.rutgers.edu/courts/supreme/a-81-08.opn.html The Supreme Court found that the West Windsor-Plainsboro Board of Education had violated the First Amendment rights of an individual who repeatedly appeared at Board meetings. At eight meetings, plaintiff offered comments critical of the high school girls’ basketball coach and of the district’s failure to require accountability for unsportsmanlike conduct, including the use of profanity. At the ninth meeting, the board president asked members of the public to limit their comments to five minutes. Others were permitted to talk without interruption, and in some instances, their comments exceeded the five-minute limit. Plaintiff, on the other hand, was cut off after thirty seconds After trial on a civil rights complaint a jury awarded plaintiff $100,000 against the school district. Under the First Amendment to the United States Constitution, a governmental entity may impose reasonable time, place and manner restrictions on speech in a public forum, as long as the restrictions are justified without reference to the content of the regulated speech, are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication of the information. However, in this case, the restrictions against plaintiff were justifiably found to have been content oriented and therefore violated plaintiff’s rights. Because other board members had acquiesced when the president cut off plaintiff’s speech, the president was determined to be “the final policy maker” and, therefore, the board as an entity could be held liable. The jury verdict was upset because of lack of evidence as to damages. CONSTITUTIONAL LAW FIRST AMENDMENT Mazdabrook Commons Homeowners’ Assn. v. Khan (Unpub.App.Div. September 1, 2010) http://lawlibrary.rutgers.edu/courts/appellate/a6106-08.opn.html A common interest community regulation that allows only one window sign advertising that the unit is for sale and barring all other signs violates the First Amendment right of the property owner to put up a political sign advocating his own candidacy. Unlike the regulation in Committee for a Better Twin Rivers v. Twin Rivers Homeowners' Association, 192 N.J. 344 (2007), the sign here was not “content neutral” because it favored commercial speech. The first amendment rights of a property owner overrode any interest of the community in banning all signs other than “for sale” signs. Reasonable time, place and manner sign regulations are not precluded. CONSTITUTIONAL LAW ADMINISTRATIVE REGULATIONS N.J. Ass’n. of School Administrators v. Schundler, 414 N.J.Super. 530 (App. Div. 2010) http://lawlibrary.rutgers.edu/courts/appellate/a2101-08.opn.html Plaintiffs challenged certain regulations (N.J.A.C. 6A:23A-1 to 22.15.) enacted by the Department of Education, intended to help limit local school budgets and thereby moderate tax increases, by reducing non-salary payments to Superintendents and Assistant Superintendents. While noting that regulations are accorded a presumption of validity (N.J. State League of Municipalities v. Dep't of Cmty. Affairs, 158 N.J. 211, 222, 1999), the court recognized that the presumption does not attach -2- if the regulation on its face reveals that the agency exceeded the power delegated to it by the Legislature. (In re N.J. Individual Health Coverage Program's Readoption of N.J.A.C. 11:20-1 et seq., 179 N.J. 570, 579, 2004). After rejecting the broad constitutional and statutory challenges, the court upheld most of the regulations relating to Superintendents, who are contractual and not tenured, and non-tenured Assistant Superintendents. The court found that they have no vested right in most of the benefits being taken away. But, concerning tenured Assistant Superintendents, the court invalidated a number of the regulations, finding that they violated the provisions of the tenure law which prohibit a reduction in “compensation” during good behavior. The court did invalidate the regulation, as to all categories of plaintiffs, which limited the payment for previously accumulated sick leave, as taking away an accrued benefit, but did allow that section to be effective as to any future accumulated sick leave. There was a partial dissent as to the invalidation of the regulations concerning tenured Assistant Superintendents, and other issues. CONSTITUTIONAL LAW EQUAL PROTECTION New Jersey Law Enforcement Supervisors Association v. New Jersey, 414 N.J. Super. 111 (App. Div. 2010) http://lawlibrary.rutgers.edu/courts/appellate/a2839-08.opn.html The police and firefighters’ paid convention leave statute, N.J.S.A. 11A:6-10, applies only to members of employee organizations affiliated with the State's two largest police unions and two largest firefighter unions. The court upheld that law against a challenge to its constitutionality by two independent police unions. It found that the law is not prohibited “special legislation” and does not violate the equal protection rights of members of employee organizations not affiliated with the unions designated in the statute. According to the court, the legislature could reasonably have determined that the probable worth of the educational opportunities at a large convention would be qualitatively different than those offered at a small convention. The legislative dividing line drawn to conserve fiscal resources serves a valid state interest. The classification prescribed in the statute bears a rational and reasonable relationship to the educational purpose of the statute, so the presumption of validity had not been overcome, and the statute is not unconstitutional as special legislation. CONSTITUTIONAL LAW FIRST AMENDMENT Doe v. Reed, ___ U.S.___, 130 S. Ct. 2811; 177 L. Ed. 2d 493; 2010 U.S. LEXIS 5256 (2010) The State of Washington adopted a law allowing same-sex marriage. A referendum petition to set it aside was circulated, filed and declared to contain sufficient signatures. Persons opposed to the referendum filed a public records request
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