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Legal Q & A



Matthew Weng
Matthew Weng
League Staff Attorney

Residency Requirements

Q In QIn your previous column you discussed residency requirements and how they affect displaced local elected officials. You mentioned a case from 1989, Borden v. Lafferty, as demonstrating some of the principles that a court would look to. Are there any more recent cases that take a look at this issue?

A Indeed there are. In Fay v. Medford Township Council, 423 N.J. Super. 81, (Ch.,2011), a Chancery Division case from 2011, the court examined residency requirements in detail and provided more guidance to local officials.

In Fay, Councilwoman Victoria Fay filed suit against the Medford Township Council after the Council determined that she no longer resided in Medford and declared her seat vacant pursuant to the Municipal Vacancy Law. Councilwoman Fay argued that because of a recent divorce “it was in her best interest and that of her son to vacate the marital home of 17 years which is located in Medford. Because of this marital dispute, she alleges that she had no place to go and had no income, so as a last resort she relocated temporarily to a condominium unit that her husband owned, and which was unoccupied.” Id. at 88-89. Fay further argued that Medford was her permanent home, that she fully intended to return, and that she turned down offers from Medford residents to stay with them because she did not want to burden them with her problems.

Fay argued that the process used by Medford to determine her seat vacant was arbitrary, capricious, and unreasonable.

The Judge looked to the Municipal Vacancy Law and determined that the procedure to declare a seat vacant under that statute required “a basic due process hearing on notice to her, so that she could confront the allegations and be properly represented by counsel if she chose.

Further, the Council should, following such hearing make appropriate findings of fact and conclusions of law .

 

 

Q Is it true that this is your last column for
the League of Municipalities Magazine?

A That is true. I am moving on to my next challenge in private practice and this column will be placed in the more than capable hands of my successor, Edward Purcell, Esq. I want to thank everyone who reads the column, has suggested questions, and offered advice and corrections. Your input has improved this column immensely, and I hope you will continue to read and contribute in the future.

I also want to thank the community of local government attorneys that I have had the privilege of working with over the last four years. Your wealth of knowledge and experience has been an asset to the League of Municipalities’ legal efforts, and we would not be nearly as effective without your counsel and hard work. I hope to cross paths with you all in the future. Once again, thank you and good luck!

 

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

First published in New Jersey Municipalities, Volume 90, Number 6, June 2013

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