Finkel v. Township Committee of the Township of Hopewell

84 A.3d 263, 434 N.J. Super. 303, 2013 WL 6839489, 2013 N.J. Super. LEXIS 188
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 30, 2013
StatusPublished
Cited by17 cases

This text of 84 A.3d 263 (Finkel v. Township Committee of the Township of Hopewell) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Finkel v. Township Committee of the Township of Hopewell, 84 A.3d 263, 434 N.J. Super. 303, 2013 WL 6839489, 2013 N.J. Super. LEXIS 188 (N.J. Ct. App. 2013).

Opinion

The opinion of the court was delivered by

SABATINO, J.A.D.

This appeal involves the ambiguous interrelationship of several referendum provisions within the New Jersey election statutes. Specifically, we consider whether a proposed question on a nonbinding local referendum may be placed on a ballot when the municipality has failed to submit the proposal to the county clerk within 81 days before an election as required by N.J.S.A. 19:37-1, but has submitted the proposal within the 65-day deadline separately set forth in N.J.S.A 19:37-2. As part of our analysis, we also consider whether a governing body’s non-compliance with the 81-day deadline in N.J.S.A. 19:37-1 conflicts with the local citizens’ interests, as protected by N.J.S.A. 19:37-1.1, in having sufficient time to react to a referendum that has been proposed to be placed on the ballot.

For the reasons that follow, we conclude that a governing body’s ballot submission must meet the separate deadlines of both N.J.S.A 19:37-1 and N.J.S.A. 19:37-2. Because the 81-day deadline of N.J.S.A. 19:37-1 was not met here, we declare the referendum at issue untimely and thus invalid. Consequently, we reverse the trial court’s order holding to the contrary. Because the election has occurred and the governing body has already acted on the policy question posed by the referendum, we issue no other relief beyond our declaratory ruling.

I.

The case arises out of the Law Division’s order denying plaintiffs’ request to declare invalid a non-binding referendum question placed on the Hopewell Township ballot for the November 5, 2013 General Election. The referendum sought the input of Township voters on restricting the speed limit of a section of Route 579 in the Township in front of the. Bear Tavern Elementary School. That portion of Route 579, also known as Bear Tavern Road, is currently owned and maintained by Mercer County.

Plaintiffs Adam M. Finkel, Catherine M. Kavanaugh, and James J. Wulf are Township residents. They have advocated for the [308]*308Township to acquire that section of Route 579 from the County in order to reduce the speed limit by the elementary school.1

On August 27, 2013, the Township’s governing body submitted a proposed non-binding referendum to the Mercer County Clerk for inclusion on the General Election ballot for November 5, 2013. The purpose of the referendum was to gauge local voter sentiment about the potential acquisition of the roadway segment from the County.

The referendum question, Resolution # 13-248, read as follows:

Shall the Township of Hopewell take over ownership, including maintenance, of a one and one-half mile section of Bear Tavern Road (County Route 579) between Jacobs Creek Road and Washington Crossing Road (County Route 546), which is currently owned and maintained by the County of Mercer, for the purpose of lowering the speed limit from 30 mph to 25 mph, within the one-quarter mile school zone in front of Bear Tavern Elementary School during the approximately 180 day school year’ for 12 hours on school days for an estimated average yearly cost for the first 15 years of $67,000 per year?

The accompanying interpretive statement2 read as follows:

For 50 years, the speed limit on Bear Tavern Road (County Route 579) in front of Bear Tavern Elementary School was 50 mph. In 2012, at the request of Hopewell Township, the County of Mercer lowered the speed limit between Jacobs Creek Road and Washington Crossing Road (County Route 546) to 45 mph and, for the one-quarter mile in front of Bear Tavern Elementary School, to 30 mph.
In 2013, Mercer County declined the Township’s request to lower the speed limit in the school zone to 25 mph, but proposed the following: 1) the County would reconsider lowering the speed limit in the school zone after one year following the Jacobs Creek Bridge being re-opened to traffic, which is anticipated to occur in 2014; 2) the County would upgrade the current school zone warning flashers with [309]*309driver feedback signs; 3) the County would enable local officials to operate these devices to better coincide with the school schedule.
If Hopewell Township takes over ownership of the roadway, Mercer County would no longer be responsible for any further costs associated with the roadway, including replacement of the road surface every 15 years and maintenance, such as road repair, signs and winter salting and plowing. Either way, Mercer County would retain ownership of Jacobs Creek Bridge and the intersection of Washington Crossing Road (County Route 546).
A “yes” vote would tell the Township to take over the roadway.
A “no” vote would tell the Township do not take over the roadway.

After receiving the Township’s submission, the County Clerk was advised of plaintiffs’ objection to the inclusion of the referendum question on the November 2013 General Election ballot. Nevertheless, the County Clerk decided under the circumstances to proceed with printing those ballots, including the referendum and interpretive statement.

Plaintiffs maintained that the governing body’s submission of the referendum question to the Mercer County Clerk was untimely under N.J.S.A. 19:37-1, as it was submitted only 70 days before the election. Moreover, they contended that the interpretive statement accompanying the referendum question was misleading, and that the statement was unfairly worded to sway voters to oppose it.

N.J.S.A. 19:37-1, which has been amended several times since its original enactment, currently reads:

When the governing body of any municipality or of any county desires to ascertain the sentiment of the legal voters of the municipality or county upon any question or policy pertaining to the government or internal affairs thereof, and there is no other statute by which the sentiment can be ascertained by the submission of such question to a vote of the electors in the municipality or county at any election to be held therein, the governing body may adopt at any regular meeting an ordinance or a resolution requesting the clerk of the county to print upon the official ballots to be used at the next ensuing general election a certain proposition to be formulated and expressed in the ordinance or resolution in concise form. Such request shall he filed with the clerk of the county not later than 81 days previous to the election. [N.J.S.A. 19:37-1 (emphasis added).!

It is undisputed that the Township’s submission of the ballot question to the County Clerk occurred only 70 days before the election and therefore did not meet this specified 81-day deadline.

[310]*310Defendants, the Township Committee and the Mercer County Clerk, contended that the failure to adhere to the 81-day deadline was inconsequential here because a certified copy of the resolution was submitted to the County Clerk within the 65-day time frame prescribed by N.J.S.A 19:37-2. That statutory provision, which likewise has been amended multiple times (albeit not always at the same time as N.J.S.A 19:37-1), presently reads as follows:

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Bluebook (online)
84 A.3d 263, 434 N.J. Super. 303, 2013 WL 6839489, 2013 N.J. Super. LEXIS 188, Counsel Stack Legal Research, https://law.counselstack.com/opinion/finkel-v-township-committee-of-the-township-of-hopewell-njsuperctappdiv-2013.