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William G. Dressel Jr, Executive Director - Michael J. Darcey, CAE, Asst Executive Director

Legal Q & A

 

Annexation and the Opem
Public Meetings Act



Deborah M. Kole
League Staff Attorney

Q We live on a street that runs through our municipality and a neighboring municipality. Our neighborhood association has been impressed with the better level of services that our neighbors in the other municipality receive. I have heard that there is a process through which a part of one municipality can "secede" and become part of a neighboring municipality. However, when I mentioned this, one of the other members of the group said that it is a complex and difficult process, and one that is, as he said, "not worth the trouble." Is this true?

A While only you and your neighbors can decide, of course, whether it is "worth the trouble" to embark on this course of action, it is true that this process, called annexation, has a number of steps, designed to give a voice in making the decision to everyone who would be affected by the change. Under N.J.S.A. 40A:7-12, et seq., a petition setting forth the boundaries of the land involved must be signed by at least 60 percent of the legal voters living there and presented to the governing body in which it is located. The governing body then has 14 days to present the petition to the municipal planning board for review. The board has 45 days to report on the projected impact of the annexation on the municipality. Within 30 days of receiving the report, the governing body must act. A resolution consenting to annexation must then be passed by two-thirds of the full membership of the governing body for the process to continue.

If the annexation will have an impact on the debt obligations of the sending municipality due to the lost ratables, and the receiving municipality will obtain ratables without debt obligation, the sending municipality may insist on financial compensation for this economic loss.

Once the first municipality has consented to the annexation, the petition with the approving resolution attached must be presented to the governing body of the municipality to which the petitioners seek to have the land annexed. This governing body must pass an ordinance (not merely a resolution) by a two-thirds majority to effect the annexation.

If either municipality does not consent to the annexation, N.J.S.A. 40A:7-12.1 allows the petitioners to appeal for judicial review, but it puts the burden of proof on the petitioners to show that the refusal to consent was "arbitrary or unreasonable, ...detrimental to the economic and social well-being of a majority of the residents of the affected land, and that the annexation will not cause a significant injury to the well-being of the municipality in which the land is located." Since this provision concerning the burden of proof was passed into law in 1982, the courts in the two reported cases have refused to overturn the decisions made by municipalities in denying annexation. (Russell v. Stafford, 261 NJ Super. 43, L.Div.1992; Avalon Manor Improvement Association, Inc., v. Township of Middle, 370 NJ Super.73, App. Div. 2004).

 

 

Q I am mayor of a small municipality, and I belong to a regional mayor's group including about 15 municipalities that meets once a month to discuss common experiences and problems. A citizens group in my community just called my office to complain that, by not giving proper notice to the public of these meetings, the group is violating the Open Public Meetings Act. Frankly, I had never considered this issue, but now I am concerned. Is this a problem?

A The meetings you describe, made up of mayors only from different communities, do not come within the Open Public Meetings Act, and therefore are not subject to its notice requirements. Under N.J.S.A. 10:4-8 (b), the definition of "meeting" is "...any gathering...attended by, or open to, all of the members of a public body, held with the intent, on the members of the body present, to discuss or act as a unit upon the specific public business of that body. Meeting does not mean...any gathering (1) attended by less than an effective majority of the members of a public body, or (2) attended by or open to all the members of three or more similar public bodies at a convention or similar gathering."

Meetings of a regional mayors' group do not fit the OPMA definition of a "meeting" subject to the Act under both (1) and (2) above, because no members of the various governing bodies attend except for the mayors, and because it is a convention-type gathering. The exemption of such meetings from OPMA is logical because the law is intended to open governmental decision-making to the public. Since no decisions of this nature can be made at a meeting including only mayors, there is no need for OPMA's requirements to apply.

 

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


 

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