February 19, 2009
Municipal Clerk: Please forward to Governing Body members, members of local land use boards, the Municipal Attorney and Land Use Board Attorneys.
Re: LEGISLATIVE ALERT
I. Inherently Beneficial uses Scheduled for a Senate Vote
S-1303, which defines “…the term “inherently beneficial use” for the purposes of zoning use variance and specifically includes facilities that supply electrical energy produced from wind, solar, or photovoltaic technologies” has been scheduled for a vote by the State Senate for this Monday, February 23.
While the League supports the development of alternate energies, we believe that defining in statute “inherently beneficial use” for the purposes of these efforts sets a bad precedent. If a use is deemed to be “inherently beneficial” it presumptively satisfies the criteria for a use variance under subsection d of section 57 of the MLUL, (i.e., a nonconforming use.)
The League has opposed past efforts to introduce a definition for “inherently beneficial use” because special interests have sought additional amendments to exempt their constituencies. If indeed a project is beneficial to the community, the applicant has the option to go through the normal regulatory and democratic process. No such change in the statute is necessary.
This legislation needlessly interferes with local planning and discretion. Thus, we also suggest asking your State Senator to oppose S-1303.
For more information on this bill, see our Dear Mayor letter of February 10 or contact Mike Cerra at email@example.com or 609-695-3481 x120.
II. Law officers Appeal of Suspension
A-3481/S-1336, legislation which provides certain protections for suspended law enforcement officers, is also scheduled for a vote by the Senate on Monday, February 23. The suspended officers and firefighters would regain their pay status when appeals of termination are not resolved within 180 days. Passage of this legislation would, in fact, supersede local collective bargaining agreements.
Existing state statutes and regulations in both civil service and non-civil service jurisdictions already govern suspensions for law enforcement officers. For example, the appointing authority has forty-five (45) days to file a complaint on an employee charging him/her with a violation of internal rule and regulations. In civil service jurisdictions, an employee suspended without pay is entitled to a departmental hearing within thirty (30) days and the departmental decision must be rendered within twenty (20) days of the hearing. An appeal of the decision must be filed within twenty (20) days. In non-civil service jurisdictions, a departmental hearing must be commenced within thirty (30) days from the service of the complaint, and the employee can appeal his/her discipline to the Superior Court by filing an application within 10 (ten) days from the date the appointing authority issues a decision on the charge(s). An employee unjustly suspended that is cleared of any charges is already entitled to remedial relief, including reinstatement, back pay and attorney fees.
Individual members of a department may be disciplined, through suspension without pay, because they have blatantly violated department rules, misused department equipment, been involved in domestic disputes, inappropriately used their authority, or any other number of reasons for which discipline would be warranted. During this period of discipline, there is a specific grievance procedure, which is established as part of a collective bargaining agreement. If an officer is suspended without pay, it is covered by the Standard Operating Procedures of the department and collective bargaining agreement of the particular bargaining group. This bill unilaterally suggests there is a need for legislative intervention and that intervention should supersede already existing statutes and regulations and the collective negotiations process.
The duly elected mayors and governing bodies are charged with the responsibility of leading and operating their municipalities. In doing such, they collectively negotiate with the employee representative. Due process is something which is part of the local contractual mandate for mayors and governing bodies. To arbitrarily establish a 180 day limit, through state legislation, is an attempt to strip mayors and governing bodies of their right to collectively negotiate with employees. This would be the wrong action and wrong message.
Moreover, A-3481/S-1336 raises an unfunded state mandate concern. The local unit is required to pay the salary of the suspended officer during any appeal process. If charges against the officer are sustained, the municipality would be placed in the most difficult position of trying to recoup money from someone who had not been working.
We urge you to immediately contact your Senator and express vehement opposition to this legislation.
For more on this bill, please see our Dear Mayor letter of February 6.
Very truly yours,
William G. Dressel, Jr.