In Re: Petition for Referendum to Repeal Ordinance 2354-12 of the Tp. of West Orange(073069) ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
In re Petition for Referendum to Repeal Ordinance 2354-12 of the Twp. of W. Orange
(A-54-13) (073069)
Argued October 7, 2015 – Decided December 21, 2015
ALBIN, J., writing for a unanimous Court.
In this appeal, the Court considers whether plaintiffs’ action in lieu of prerogative writs challenging a
municipal ordinance authorizing the issuance of $6,300,000 in bonds to finance a redevelopment project in the
Township of West Orange is untimely under the twenty-day limitation period of N.J.S.A. 40A:2-49 and Rule 4:69-
6(b)(11).
The Mayor and Township Council of West Orange passed a resolution declaring the Township’s downtown
area to be an “area in need of redevelopment.” On March 20, 2012, the Township adopted Ordinance 2354-12
(ordinance) allowing it to issue $6,300,000 in redevelopment bonds to fund the project. The effective date of the
ordinance was twenty days after its publication, which occurred on March 22, 2012.
Several Township residents formed a committee to challenge the ordinance by referendum and filed a
referendum petition with the Township Clerk. That filing suspended the ordinance by operation of law pending the
Clerk’s review of the validity and sufficiency of the petition. The Clerk rejected the petition because it contained an
insufficient number of valid signatures and because the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-
28 (Redevelopment Law), precluded the submission of a bond ordinance for voter approval. An amended petition
was rejected for the same reasons.
Fifty-three days after final publication of the ordinance, plaintiffs commenced this action by verified
complaint in lieu of prerogative writs challenging both the validity of the ordinance and the rejection of the
referendum petition. The trial court determined that because the ordinance was a redevelopment bond ordinance,
the Redevelopment Law prohibited public approval by referendum. Although the court also suggested that plaintiffs
had not established the invalidity of the ordinance based on the absence of review by the Local Finance Board, the
court did not reach that issue because it held the action untimely under N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11),
and dismissed the complaint.
The Appellate Division affirmed the dismissal in an unpublished opinion. The panel found that the
complaint was not filed within twenty days of the publication date of the ordinance, as required by Rule 4:69-
6(b)(11), and that the plaintiffs did not seek an enlargement of that period under Rule 4:69-6(c). The panel rejected
plaintiffs’ argument that the time for filing an action did not begin to run until after the Township Clerk’s second
rejection of the referendum petition. The panel therefore concluded that plaintiffs’ challenge to the ordinance was
time-barred, and was properly dismissed. This Court granted limited certification. 217 N.J. 51 (2014).
HELD: A challenge to a redevelopment bond ordinance must be filed within twenty days of the final publication of
the ordinance pursuant to Rule 4:69-6(b)(11) and N.J.S.A. 40A:2-49, barring the most extraordinary circumstances,
which are not present here. Although Rule 4:69-6(c) permits an enlargement of the filing period in the interest of
justice, N.J.S.A. 40A:2-49, which states that a bond ordinance is conclusively presumed to be valid twenty days
after publication, counsels against exceptions to the twenty-day filing rule. Consequently, plaintiffs’ action, which
was not filed until fifty-three days after publication of the ordinance, is untimely and was properly dismissed.
1. The issue of the timeliness of plaintiffs’ action in lieu of prerogative writs challenging the validity of the West
Orange redevelopment bond ordinance requires construction of a court rule and a statute, and therefore presents a
question of law which is subject to de novo review. (p. 9)
1
2. Plaintiffs first challenged the ordinance by filing a petition for referendum. Although the right to referendum is
generally applicable to any ordinance, the Legislature has authority to exempt specific categories of ordinances from
the reach of ballot approval. The ordinance challenged here is a redevelopment bond ordinance in form and
substance. The Legislature has unambiguously decreed that an ordinance enacted under the Redevelopment Law is
not subject to voter approval. The Township Clerk therefore properly concluded that the ordinance was not subject
to referendum. (pp. 10-12)
3. Plaintiffs’ challenge to the validity of the ordinance, asserted through the action in lieu of prerogative writs filed
fifty-three days after publication of the ordinance, was brought beyond the twenty-day period mandated by N.J.S.A.
40A:2-49 and Rule 4:69-6(b)(11). Under N.J.S.A. 40A:2-49, it is conclusively presumed that a bond ordinance is
valid twenty days after publication of final passage of the ordinance. The statute further states that interested parties
are estopped from denying the validity of the ordinance after the twenty-day period. A predecessor statute similarly
cloaked a municipal bond ordinance with a presumption of validity and estopped legal challenges after the requisite
filing period. The twenty-day limitation period is intended to prevent any action which would cast a cloud on the
validity of the bonds, and provide confidence to financial markets and investors that municipal bonds authorized by
ordinance will not be subject to a legal challenge after expiration of the stated period. The Legislature has therefore
expressed the need for strict time limits governing the commencement of lawsuits challenging bond ordinances.
(pp. 12-15)
4. The twenty-day limitation period of N.J.S.A. 40A:2-49 is mirrored by Rule 4:69-6(b)(11). Rule 4:69-6(c)
permits an enlargement of the requisite filing period where it is manifest that the interest of justice requires that
relief. Any expansion of the limitations period, however, must be balanced against the important policy of repose
expressed in the Rule. Consequently, in the challenge to the bond ordinance asserted here, the enlargement of time
provision of Rule 4:69-6(c) must yield to the plain meaning and purpose of N.J.S.A. 40A:2-49, including the
conclusive presumption of validity of a bond ordinance after twenty days, which militate against exceptions to the
filing period. Only in the most extraordinary of circumstances, which are not presented here and are difficult to
envision, should a court entertain a request to enlarge the twenty-day filing period for an action in lieu of prerogative
writs challenging a municipal bond ordinance. (pp. 15-17)
5. The referendum petition that plaintiffs filed seeking to place the ordinance on the ballot does not toll the twenty-
day limitation period for challenging the ordinance’s validity. N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11). To
decide otherwise would sanction a template that delays the implementation of a duly enacted bond ordinance,
contrary to statute and Court Rule. (pp. 18-19)
The judgment of the Appellate Division, which upheld the trial court’s dismissal of plaintiffs’ action in lieu
of prerogative writs, is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES PATTERSON and SOLOMON; and JUDGE CUFF
(temporarily assigned) join in JUSTICE ALBIN’S opinion. JUSTICES LaVECCHIA and FERNANDEZ-
VINA did not participate.
2
SUPREME COURT OF NEW JERSEY
A-54 September Term 2013
073069
IN RE: PETITION FOR
REFERENDUM TO REPEAL
ORDINANCE 2354-12 OF THE
TOWNSHIP OF WEST ORANGE,
ESSEX COUNTY, WINDALE
SIMPSON, MARK MEYEROWITZ,
ALTHIA TWEITEN, MICHAEL
SCHARFSTEIN, AND ROSARY
MORELLI,
Plaintiffs-Appellants,
v.
THE TOWNSHIP OF WEST ORANGE,
a Municipal Corporation of
the State of New Jersey,
ROBERT D. PARISI, Mayor, and
KAREN CARNEVALE, Clerk of
West Orange Township,
Defendants-Respondents,
and
PRISM GREEN ASSOCIATES IV,
L.L.C., PRISM GREEN URBAN
RENEWAL ASSOCIATES IV,
L.L.C., and GP 177 MAIN URBAN
RENEWAL, L.L.C.,
Defendants/Intervenors-
Respondents.
Argued October 7, 2015 – Decided December 21, 2015
On certification to the Superior Court,
Appellate Division.
George B. Campen argued the cause for
appellants.
1
William W. Northgrave argued the cause for respondents
(McManimon, Scotland & Baumann, attorneys; Mr.
Northgrave and Jennifer L. Credidio, on the brief).
Patricia E. Stern, Deputy Attorney General,
argued the cause for amicus curiae Local
Finance Board (John J. Hoffman, Acting
Attorney General of New Jersey, attorney;
Melissa H. Raksa, Assistant Attorney
General, of counsel; Donald M. Palombi,
Deputy Attorney General, on the letter
brief).
Louis N. Rainone appeared on behalf of
intervenors-respondents and relied on the
argument of respondents (DeCotiis,
FitzPatrick & Cole, attorneys; Daniel E.
Zwillenberg, on the letter joining in
respondents brief).
Edward Purcell, Associate Counsel, submitted
a brief on behalf of amici curiae New Jersey
State League of Municipalities and New
Jersey Institute of Local Government
Attorneys (William J. Kearns, Jr., General
Counsel, attorney).
JUSTICE ALBIN delivered the opinion of the Court.
The matter before us concerns a challenge to the validity
of a municipal ordinance authorizing the issuance of $6,300,000
in bonds to finance a redevelopment project in the Township of
West Orange. Plaintiffs filed an action in lieu of prerogative
writs claiming that the Township failed to secure the
statutorily required approval for the bond ordinance from the
Local Finance Board, which is a part of the Division of Local
Government Services within New Jersey’s Department of Community
2
Affairs (State’s Local Finance Board). On that basis,
plaintiffs submit that the bond ordinance is invalid.
The trial court dismissed the prerogative-writs action
because plaintiffs filed their complaint fifty-three days after
final publication of the bond ordinance -- well outside the
twenty-day period permitted by Rule 4:69-6(b)(11). The
Appellate Division affirmed.
We hold that a challenge to a redevelopment bond ordinance
must be filed within twenty days of the final publication of the
ordinance in accordance with Rule 4:69-6(b)(11), barring the
most extraordinary of circumstances, which are not present here.
N.J.S.A. 40A:2-49 provides that bond ordinances are
“conclusively presumed” to be valid twenty days after
publication of the final passage of the ordinance. The clear
purpose of N.J.S.A. 40A:2-49 is to assure bondholders and
financial markets that bonds, once issued, will not be subject
to attack. Permitting late-filed challenges to bond ordinances
would erode public confidence in the legitimacy of bonds that
are issued and almost certainly lead to delay in the
implementation of such ordinances. We must read Rule 4:69-
6(b)(11) in conjunction with the public policy expressed in
N.J.S.A. 40A:2-49. We therefore affirm the dismissal of
plaintiffs’ late-filed action. We do not reach the issue of
whether this bond ordinance required approval from the State’s
3
Local Finance Board.
I.
A.
The Mayor and Township Council of West Orange passed a
resolution declaring the Township’s downtown area, which
includes the historic Edison Storage Battery Building, to be an
“area in need of redevelopment.” On March 20, 2012, the Mayor
and Council enacted Ordinance 2354-12 allowing the Township to
issue $6,300,000 in redevelopment bonds to fund the project. In
doing so, the Township directly exercised redevelopment powers
conferred on it by the Local Redevelopment and Housing Law,
N.J.S.A. 40A:12A-1 to -73, in particular N.J.S.A. 40A:12A-37.
The Township pledged its full faith and credit toward repayment
of the bonds. To that end, the ordinance provided that the
municipality would “be obligated to levy ad valorem taxes upon
all the taxable real property within the Township.” The
effective date of the ordinance was twenty days after its
publication, which occurred on March 22, 2012.
Several Township residents formed a Committee of
Petitioners to challenge the ordinance by referendum -- that is,
to place the ordinance on the ballot for voter approval. On
April 5, 2012, the Committee filed with the Township Clerk a
referendum petition supported by the signatures of municipal
residents. Upon the filing of the referendum petition, the
4
ordinance was suspended by operation of law until the Clerk
completed her review of the validity and sufficiency of the
petition. See N.J.S.A. 40:69A-189.
On April 16, 2012, the Clerk rejected the referendum
petition on two separate grounds. First, she concluded that the
Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-28, barred
the submission of a bond ordinance for voter approval. Second,
she determined that the Committee of Petitioners had submitted
an insufficient number of valid signatures to trigger a
referendum. On May 2, 2012, the Clerk rejected an amended
petition for the same two reasons.
Fifty-three days after the ordinance’s publication, on May
14, 2012, a “Protest Committee” consisting of plaintiffs,
Windale Simpson, Mark Meyerowitz, Althia Tweiten, Michael
Scharfstein, and Rosary Morelli, filed a verified complaint in
lieu of prerogative writs challenging both the validity of the
ordinance and the Township Clerk’s rejection of the referendum
petition. The complaint named West Orange Township, the Mayor,
and the Township Clerk as defendants. Plaintiffs alleged that
the bond ordinance was void because the Township had not
submitted the ordinance to the State’s Local Finance Board for
approval. Plaintiffs also alleged that the Township Clerk
wrongly rejected the referendum petition. In particular,
plaintiffs claimed that the Local Redevelopment and Housing Law
5
did not exempt this bond ordinance from a referendum and that
the petition contained a sufficient number of qualifying
signatures.
The redeveloper for the downtown village project was
granted leave to intervene in the lawsuit by the trial court.1
B.
The trial court determined that the West Orange ordinance
was “nothing more nor less than a re-development bond
ordinance.” On that basis, the court found that N.J.S.A.
40A:12A-28 of the Local Redevelopment and Housing Law prohibited
the submission of the ordinance for public approval by
referendum.
The court also noted that plaintiffs had not established
that the Township was required to submit the bond ordinance for
Local Finance Board review and therefore had not proved that the
ordinance was invalid. Ultimately, the court concluded that it
did not have to reach that issue because plaintiffs’ complaint
challenging the validity of the redevelopment bond ordinance was
not filed within the twenty-day limitation period set by
N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11). Accordingly, the
1 The redeveloper, Prism Green Associates IV, L.L.C., Prism Green
Urban Renewal Associates IV, L.L.C., and GP 177 Main Urban
Renewal, L.L.C., relied on the arguments advanced by West Orange
Township.
6
court dismissed the action in lieu of prerogative writs.
Plaintiffs appealed the dismissal of their complaint.
C.
The Appellate Division affirmed the dismissal in an
unpublished opinion. The panel held that N.J.S.A. 40A:12A-28
unequivocally expressed the Legislature’s intent to exclude
Local Redevelopment and Housing Law ordinances, such as the West
Orange bond ordinance, from citizen review in a referendum. The
panel also found that the action in lieu of prerogative writs
challenging the validity of the bond ordinance was not filed
within twenty days of the ordinance’s publication, as required
by Rule 4:69-6(b), and that plaintiffs did not seek from the
trial court an enlargement of that time period in “the interest
of justice,” pursuant to Rule 4:69-6(c). The panel rejected
plaintiffs’ argument that the time for filing the prerogative-
writs action did not begin to run until after the Township
Clerk’s second rejection of their referendum petition.
Accordingly, the panel concluded that plaintiffs’ challenge to
the ordinance was time-barred.
We granted plaintiffs’ petition for certification on two
issues: (1) “whether plaintiffs’ action challenging the
municipal ordinance was time[-]barred; and, if not, [(2)]
whether the ordinance was invalid because of the municipality’s
failure to submit an application for approval of the issuance of
7
bonds to the Local Finance Board in the Department of Community
Affairs.” In re: Petition for Referendum to Repeal Ordinance
2354-12 of the Twp. of W. Orange, 217 N.J. 51 (2014). The New
Jersey Institute of Local Government Attorneys and the New
Jersey State League of Municipalities, and the State’s Local
Finance Board accepted this Court’s invitation to participate as
amici curiae.
II.
Plaintiffs argue that the filing of the referendum
petition, which tolled the date the bond ordinance went into
effect, also tolled the date for filing the prerogative-writs
action, which challenged the validity of the ordinance.
Further, plaintiffs submit that this Court can enlarge the time
permitted for filing the prerogative-writs action in “the
interest of justice,” in accordance with Rule 4:69-6(c).
Plaintiffs maintain we should not pass on the important issue
before us: whether the Township may forego “the statutory
requirement for Local Finance Board review and approval.”
Defendants contend that the redevelopment bond ordinance
adopted by West Orange Township is not subject to voter review
in a referendum, citing N.J.S.A. 40A:12A-28, or to Local Finance
Board approval, citing N.J.S.A. 40A:12A-29(a), -37, -67.
Defendants, moreover, claim that plaintiffs’ untimely
prerogative-writs action is barred by N.J.S.A. 40A:2-49 and Rule
8
4:69-6(b)(11). Amici curiae advance arguments in support of the
positions taken by defendants.
III.
A.
The immediate issue before us is whether plaintiffs filed a
timely action in lieu of prerogative writs challenging the
validity of the West Orange redevelopment bond ordinance. To
decide that issue we must construe a court rule and a statute.
Our standard of review of such matters of law is de novo. See
Occhifinto v. Olivo Constr. Co. LLC, 221 N.J. 443, 453 (2015)
(“[W]e review legal determinations based on an interpretation of
our court rules de novo.”); Murray v. Plainfield Rescue Squad,
210 N.J. 581, 584 (2012) (“In construing the meaning of a
statute, our review is de novo.”); see also Manalapan Realty,
L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995) (“A trial court’s
interpretation of the law and the legal consequences that flow
from established facts are not entitled to any special
deference.”).
B.
We begin by noting that West Orange Ordinance 2354-12
clearly provides for the issuance of redevelopment bonds
pursuant to the Local Redevelopment and Housing Law and related
Local Bond Law. Ordinance 2354-12 is a self-described “bond
ordinance” for the funding of general improvements within the
9
“Downtown Redevelopment Area.” The ordinance authorizes the
issuance of “negotiable bonds” in the amount of $6,300,000 to
finance costs related to “environmental remediation, public
parking and certain infrastructure work” in the Redevelopment
Area. The Township has pledged its “full faith and credit”
toward the repayment of the principal and interest on the bonds
through the levy of “ad valorem taxes upon all the taxable real
property within the Township.”
Plaintiffs first challenged the ordinance by filing a
petition for referendum. A referendum petition is a challenge
to the wisdom of a statute, not a challenge to its legal
validity. See In re Ordinance 04-75, 192 N.J. 446, 450 (2007).
A referendum is an exercise in direct democracy that allows for
an ordinance to be placed on the ballot for voter approval or
rejection. Tumpson v. Farina, 218 N.J. 450, 468 (2014) (citing
N.J.S.A. 40:69A-185). The right to referendum is granted by
statute and extends to those municipalities whose forms of
government are organized in accordance with certain legislative
schemes. See id. at 467. The Legislature has provided “that
the voters of Faulkner Act municipalities, such as West Orange,
shall ‘have the power of referendum which is the power to
approve or reject at the polls any ordinance’ passed by the
council.” Id. at 468 (quoting N.J.S.A. 40:69A-185).
10
Although the right to referendum generally applies to “any
ordinance,” N.J.S.A. 40:69A-185, the Legislature has authority
to exempt specific categories of ordinances from the reach of
ballot approval. Ordinance 04-75, supra, 192 N.J. at 467. The
Legislature “determine[s] how much direct democracy through
referendum should be conferred on the voters of a municipality.”
Ibid. The Legislature, for example, has exempted zoning
ordinances passed pursuant to the Municipal Land Use Law,
N.J.S.A. 40:55D-1 to -129, from referendum challenges.
Ordinance 04-75, supra, 192 N.J. at 466; see N.J.S.A. 40:55D-
62(b) (“No zoning ordinance and no amendment or revision to any
zoning ordinance shall be submitted to or adopted by initiative
or referendum.”). Likewise, the Legislature has provided that
“[n]o ordinance, amendment or revision of an ordinance, or
resolution under [the Local Redevelopment and Housing Law] shall
be submitted to or adopted by initiative or referendum,
notwithstanding any other law to the contrary.” N.J.S.A.
40A:12A-28.
West Orange Township Ordinance 2354-12, in form and
substance, is a redevelopment bond ordinance. The Township
passed the bond ordinance through the exercise of redevelopment
powers conferred on municipalities by the Local Redevelopment
and Housing Law. See N.J.S.A. 40A:12A-1 to -73. The
Legislature has unambiguously decreed that an ordinance enacted
11
under the Local Redevelopment and Housing Law is not subject to
approval at the ballot box. The Township Clerk, therefore,
properly concluded that Ordinance 2354-12 was not subject to
referendum.
IV.
A.
The referendum petition -- filed with the Township Clerk
two weeks after publication of the adopted bond ordinance -- was
not a challenge to the legality of the ordinance. The petition
was not a court pleading. Rather, it was a procedural step
taken toward placing the ordinance on the ballot for voter
approval.
Not until fifty-three days after publication of the
ordinance did plaintiffs file an action in lieu of prerogative
writs in Superior Court attacking the ordinance’s legal
validity. In their complaint, plaintiffs alleged that the
Township was required to secure approval of the Local Finance
Board for the issuance of redevelopment bonds before incurring a
municipal debt. That challenge, however, was not brought within
the time limit mandated by statute and our court rule.
N.J.S.A. 40A:2-49 provides that “the following shall be
conclusively presumed” twenty days after publication of the
final passage of a bond ordinance:
a. the accuracy, correctness and
12
sufficiency of any annual or supplemental debt
statement filed in connection therewith;
b. any recitals or statements of fact
contained in such ordinance or preamble or
recital thereof;
c. determinations in said ordinance as to
purposes for which said obligations are
authorized, the period or average period of
usefulness, the maturities of any obligations,
and the validity of the purpose or purposes
for which authorized;
d. the due and regular introduction,
publication and final passage and adoption of
such ordinance;
e. the compliance with the provisions of
this chapter and every other law of such
ordinance and all matters in connection
therewith, and the issuance of obligations
authorized thereby or pursuant thereto by the
local unit.
Further, after the twenty-day time period, all interested
persons are “estopped [forever] from denying that such ordinance
or its final adoption or issuance of obligations thereunder do
not comply with the provisions of this and every other law, or
from questioning in any manner the validity of such ordinance or
any obligations issued thereunder in any action or proceeding.”
N.J.S.A. 40A:2-49.
A predecessor statute, the Pierson Act, L. 1916, c. 252,
similarly cloaked a municipal bond ordinance with a presumption
of validity and estopped legal challenges to such an ordinance
13
twenty days after its publication.2 The purpose of the twenty-
day limitation period is “to prevent any action . . . which
would cast a cloud upon the validity of the bonds.” Watters v.
Mayor & Common Council of Bayonne, 89 N.J. Eq. 384, 385 (Ch.
1918) (commenting on limitation period imposed by Pierson Act).
The evident purpose of both N.J.S.A. 40A:2-49 and the Pierson
Act is to give confidence to financial markets and investors
that municipal bonds authorized by ordinance will not be subject
to a legal challenge after a prescribed time period. Jersey
City Educ. Ass’n v. City of Jersey City, 316 N.J. Super. 245,
251-52 (App. Div. 1998) (“The approval of a municipal bond
ordinance and the complexities of preparing for the sale of
municipal bonds must have the benefit of the repose arising from
a statutory time-bar on continued litigation.”), certif. denied,
158 N.J. 71 (1999). The marketability of such bonds clearly
2 The Pierson Act, which authorized and regulated the issuance of
municipal bonds, provided, in pertinent part:
[T]wenty days after the publication of a
statement signed by the clerk . . . stating
that an ordinance or resolution in a form
published therewith has been adopted or
approved, as the case may be, such ordinance
or resolution shall be conclusively presumed
to have been duly and regularly passed and to
comply with the provisions of this or any
other act, and the validity thereof or of any
bond issued in accordance therewith . . . .
[L. 1916, c. 252, § 2(3).]
14
would be adversely affected if an ordinance could be attacked
after the issuance of the bonds. See id. at 251 (“The pendency
of a suit after the passage of a municipal bond ordinance
prevents a city or its bond counsel from representing to the
public that the proceeds of the bond will be used for the public
purposes designated within the bond ordinance.”). Thus, the
Legislature has expressed the need for strict time limits
governing the initiation of lawsuits challenging bond
ordinances.
B.
The twenty-day limitation period governing challenges to
bond ordinances in N.J.S.A. 40A:2-49 is mirrored in our court
rules. Rule 4:69-6(b)(11) states: “No action in lieu of
prerogative writs shall be commenced . . . to review any
resolution or ordinance authorizing the issuance of notes or
bonds of any municipality or other political subdivision, after
20 days from the date of the first publication thereof following
final passage.” Rule 4:69-6(c) allows a court to “enlarge the
period of time provided . . . where it is manifest that the
interest of justice so requires” in all eleven categories of
matters identified in Rule 4:69-6(a) and (b), including bond
ordinances.3
3 The time limitation for filing an action in lieu of prerogative
writs is generally forty-five days, but is subject to a number
15
Generally, the interest-of-justice provision for expanding
the limitation period will apply to cases involving “important
and novel constitutional questions,” “informal or ex parte
determinations of legal questions by administrative officials,”
“important public rather than private interests which require
adjudication or clarification,” Borough of Princeton v. Bd. of
Chosen Freeholders of Mercer, 169 N.J. 135, 152 (2001) (quoting
Brunetti v. Borough of New Milford, 68 N.J. 576, 586, (1975)),
and “a continuing violation of public rights,” ibid. (quoting
Reilly v. Brice, 109 N.J. 555, 559 (1988)). Even in such
instances, any expansion of the limitation period must be
balanced against the “important policy of repose” expressed in
the rule. Id. at 153 (quoting Reilly, supra, 109 N.J. at 559).
This case, however, presents distinctive concerns. Here,
Rule 4:69-6(b)(11), which requires the filing of an action in
lieu of prerogative writs within twenty days of a bond
ordinance’s publication, must be read in conformity with
N.J.S.A. 40A:2-49 -- the statute that confers on a bond
ordinance both a conclusive presumption of validity and
of exceptions as set forth in Rule 4:69-6(b). For example, a
prerogative-writs action challenging certain elections may not
be filed more than fifteen days after the election, R. 4:69-
6(b)(1), and an action challenging “any decision of a board of
chosen freeholders refusing or granting a permit to erect a
building in the bed of any highway” may not be filed more than
thirty days after the decision, R. 4:69-6(b)(6).
16
protection from legal attack after the twenty-day limitation
period.
Although Rule 4:69-6(c) permits an enlargement of the
filing period “where it is manifest that the interest of justice
so requires,” in the case of an ordinance authorizing the
issuance of bonds, N.J.S.A. 40A:2-49 counsels against exceptions
to the twenty-day filing rule. That is so because the public
and financial markets presume that a municipality issues legally
valid bonds. “Prospective bond purchasers are entitled to
knowledge of litigation prior to the date of the sale of
municipal bonds.” Jersey City Educ. Ass’n, supra, 316 N.J.
Super. at 251 n.6. Litigation, unquestionably, will adversely
“affect[] the sale of municipal bonds.” Ibid.Thus, the exception to Rule 4:69-6 must give way to the
plain and common-sense meaning and purpose of N.J.S.A. 40A:2-49.
We cannot dismiss, however, a possible scenario in which a bond
ordinance, even past the twenty-day limitation period, must be
declared void in the manifest interest of justice. Only in the
most extraordinary of circumstances -- circumstances that are
not presented here and difficult to envision -- should a court
entertain a request to enlarge the twenty-day filing period for
an action in lieu of prerogative writs challenging an ordinance
authorizing the issuance of municipal bonds.
V.
17
We reject plaintiffs’ argument that a referendum petition
modifies the twenty-day time limitation set forth in N.J.S.A.
40A:2-49 and Rule 4:69-6(b)(11) for the filing of a prerogative-
writs action challenging the validity of a bond ordinance.
Nothing in the statute or court rule suggests that a referendum
petition tolls the prerogative-writs limitation period.
Plaintiffs had two paths by which to challenge the bond
ordinance: (1) a prerogative-writs action aimed at the
Township’s failure to secure Local Finance Board approval for
the bond ordinance and (2) a referendum petition seeking to
place the ordinance on the ballot. Plaintiffs could have
pursued one path, the other, or both paths at the same time.
Obviously, an ordinance that is declared void because it
violates a statute does not need to be repealed in a referendum.
Logic and public policy suggest that a challenge to an
ordinance’s validity should not be delayed. Here, plaintiffs
chose to file a referendum petition even though an ordinance
authorizing the issuance of redevelopment bonds cannot be put to
a vote in a referendum. See N.J.S.A. 40A:12A-28 (stating that
no ordinance enacted pursuant to Local Redevelopment and Housing
Law “shall be submitted to or adopted by initiative or
referendum, notwithstanding any other law to the contrary”).
Pursuing a referendum in no way alters the twenty-day period in
which an action in lieu of prerogative writs must be filed to
18
challenge the legal validity of a bond ordinance. If we were to
declare otherwise, we would sanction a template that delays the
implementation of a duly enacted bond ordinance, contrary to
N.J.S.A. 40A:2-49 and Rule 4:69-6(b)(11).
Accordingly, plaintiffs’ action in lieu of prerogative
writs was not timely filed and must be dismissed. We therefore
do not decide whether the West Orange bond ordinance required
Local Finance Board approval.
VI.
For the reasons expressed, we affirm the judgment of the
Appellate Division, which upheld the trial court’s dismissal of
plaintiffs’ action in lieu of prerogative writs.
CHIEF JUSTICE RABNER; JUSTICES PATTERSON and SOLOMON; and
JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’S
opinion. JUSTICES LaVECCHIA and FERNANDEZ-VINA did not
participate.
19
SUPREME COURT OF NEW JERSEY
NO. A-54 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
IN RE: PETITION FOR REFERENDUM TO REPEAL ORDINANCE 2354-12 OF THE
TOWNSHIP OF WEST ORANGE, ESSEX COUNTY, WINDALE SIMPSON, MARK
MEYEROWITZ, ALTHIA TWEITEN, MICHAEL SCHARFSTEIN, AND ROSARY MORELLI,
Plaintiffs-Appellants,
v.
THE TOWNSHIP OF WEST ORANGE, a Municipal Corporation of the State of New
Jersey, ROBERT D. PARISI, Mayor, and KAREN CARNEVALE, Clerk of West Orange
Township,
Defendants-Respondents,
and
PRISM GREEN ASSOCIATES IV, L.L.C., PRISM GREEN URBAN RENEWAL
ASSOCIATES IV, L.L.C., and GP 177 MAIN URBAN RENEWAL, L.L.C.,
Defendants/Intervenors-
Respondents.
DECIDED December 21, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Albin
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST AFFIRM
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA -----------
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA -----------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 5