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Legal Q & A



Deborah M. Kole, League Staff Attorney
Deborah M. Kole
League Staff Attorney

Ordinances for Voter Referendum, Lead Paint
and Official Newspapers

Q I live in a municipality that is governed under the Optional Municipal Charter Law, or “Faulkner Act.” An ordinance was recently enacted that restructures the police department. Many residents are unhappy with this restructuring, and a group of us are working to file a petition to have a voter referendum on this ordinance. However, someone just told me that this is not a proper subject for a referendum because it is an “administrative ordinance” rather than a “legislative ordinance”. Is this true?

A The distinction between an administrative and a legislative ordinance for purposes of voter referendum in these circumstances is no longer an issue because of a recent New Jersey Supreme Court case. In a unanimous opinion handed down on September 26, 2007, the New Jersey Supreme Court ruled that the judicially-created exception protecting administrative ordinances from challenge by voter referendum under the Optional Municipal Charter Law(Faulkner Act) was invalid, because it is not supported by the plain language of the statute or its legislative history. In the case of In re Referendum Petition to Repeal Ordinance 04-75, 192 N.J. 446, the Court affirmed the Appellate Division finding that a Trenton ordinance restructuring the police department was subject to referendum, but disagreed with the rationale of the lower court that depended on a determination that the ordinance should be considered legislative rather than administrative. Instead, the Court found that the whole administrative/legislative distinction used by a line of cases to determine which ordinances were subject to referendum should be discarded.

Previous cases had distinguished legislative ordinances, those that speak to issues of a “permanent or general character” which were subject to voter challenge and referendum, from those of an administrative nature, concerning issues “temporary in operation and effect”, like a budget, which were not. The Court found that the plain language of the relevant statute which said that “any ordinance” was subject to referendum, as well as the history of the statute, argued against this reading. When the statute was enacted, the Court pointed out, an earlier version carving out an exception for ordinances concerning improvements or indebtedness was rejected.

The Court also noted that the New Jersey Statutes specifically exempt certain types of ordinances from referendum. These include zoning ordinances, the sale or lease of property to certain commissions or authorities, certain bond ordinances, and an ordinance adopting the State fiscal year. The Court found these specific exemptions to be further support for the position that no other ordinances are exempted from voter challenge.

Therefore, if all other requirements for petition and referendum under the Faulkner Act are met, this ordinance should be an appropriate one for voter consideration.

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Q My municipal government has incurred enormous costs from lead paint removal, health care for those residents poisoned by lead paint, and public education to prevent further poisonings. It seems to us that the companies that manufactured the paint should have to pay these costs. However, when I suggested suing the companies on this basis at a council meeting, I was told that the courts have already found that the companies cannot be forced to reimburse municipalities for these costs. Is this true?

A On June 15, 2007, the New Jersey Supreme Court reversed the holding of the Appellate Division in the case of In re Paint Litigation (2007 WL 1721956) and dismissed the suits of 26 local governments, including 22 municipalities, against lead paint companies. The court held that the plaintiffs/local governments could not sue for money damages based on claims of public nuisance. In so doing, the court prevented the recovery of local governments’ costs of detecting and removing lead paint, providing health care for the victims of lead poisoning and educating the public to avoid further lead poisoning.

This 4-2 decision was a blow to municipalities and residents affected by these issues. The court’s ruling prevents recovery by local governments of the money needed to deal with lead paint problems from the companies responsible. As communities like yours are all too aware, these costs can be substantial. The burden of these expenses will instead fall on taxpayers.

Q Our municipality has two official newspapers, a weekly newspaper and a daily newspaper. Must a land use applicant put the notice of the hearing on his or her application in both newspapers?

A Municipalities with a weekly official newspaper will often designate a daily newspaper as well so that applicants can more easily meet the notice requirements of the land use law. However, the notice need only appear in one of the newspapers.

This column is for informational purposes only, and is not intended as legal advice.

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