IN THE MATTER OF LAKEWOOD TOWNSHIP FIRE DISTRICT 1 (LOCAL FINANCE BOARD, DEPARTMENT OF COMMUNITY AFFAIRS) (NEW JERSEY DEPARTMENT OF COMMUNITY AFFAIRS) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3969-17T4
IN THE MATTER OF
LAKEWOOD TOWNSHIP
FIRE DISTRICT #1 (LOCAL
FINANCE BOARD, DEPARTMENT
OF COMMUNITY AFFAIRS).
———————————————
Argued January 16, 2019 – Decided January 31, 2019
Before Judges Nugent and Mawla.
On appeal from the New Jersey Department of
Community Affairs.
Larry S. Loigman argued the cause for appellants
Concerned Citizens for Fire Protection and Larry S.
Loigman.
Harold N. Hensel argued the cause for respondent
Township of Lakewood (Secare Law Firm, attorneys;
Harold N. Hensel, on the brief).
Jay C. Sendzik argued the cause for respondent
Lakewood Township Fire District No. 1 (Sendzik &
Sendzik, PC, attorneys; Jay C. Sendzik, on the brief).
Steven M. Gleeson, Deputy Attorney General, argued
the cause for respondent New Jersey Department of
Community Affairs, Division of Local Government
Services, Local Finance Board (Gurbir S. Grewal,
Attorney General, attorney; Melissa Dutton Schaffer,
Assistant Attorney General, of counsel; Steven M.
Gleeson, on the brief).
PER CURIAM
Appellants Concerned Citizens for Fire Protection and Larry S. Loigman,
Esq., appeal from a April 11, 2018 final decision by the Local Finance Board
(LFB) of the Department of Local Government Services (DLGS), affirming the
certification of the annual budget proposed by the Board of Commissioners of
the Lakewood Township Fire District #1 (Board). We affirm.
The following facts are taken from the record. On November 20, 2017,
the Board issued a notice of a special meeting, scheduled for December 5, 2017,
which was transmitted to the Township's municipal clerk and the Asbury Park
Press. The latter published the notice on November 24, 2017. The notice was
also posted on the Lakewood Township district website and at several public
locations within the Township, namely, the municipal building, the office of the
Board, the Ocean County Public Library–Lakewood Branch, the Department of
Public Works, and the Municipal Utilities Authority.
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The special meeting was to provide legal voters 1 information regarding
the Board's plan to include a number of capital projects in the fire district's
annual budget for the 2018 fiscal year, specifically, acquisition of a quint fire
apparatus, a brush truck, a vehicle for the fire chief, and lighting upgrades. The
December meeting occurred as scheduled, and pursuant to a vote, the Board's
proposed resolution for the capital projects passed.
At a separate meeting on December 11, 2017, the Board's entire proposed
2018 budget, including the previously approved capital projects, was voted upon
and approved. The budget was forwarded to the DLGS for certification on
January 3, 2018. On January 8, 2018, the Board held another public meeting
and adopted the annual budget, subject to affirmation by the legal voters in an
annual election scheduled in February 2018. The adopted budget was reviewed
and certified by the DLGS on January 24, 2018.
The annual election was held on February 17, 2018. The voters defeated
the budget. The Board forwarded the defeated budget to the Township for
further review and action. On March 2, 2018, the Township provided notice of
a public meeting to occur on March 8, 2018, at 7:30 p.m., for a vote on the
1
"Legal voters" is a term of art meaning "persons entitled to vote, and who do
vote, at the time and in the manner prescribed in and by such statute upon the
public question submitted[.]" N.J.S.A. 19:3-6.
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defeated budget. Notice of this meeting was published in The Star Ledger and
the Asbury Park Press. Notice was also posted on a bulletin board at the
municipal building, the Township website, and with the municipal clerk. At the
March 8, 2018 public meeting, following a vote, the Township passed a
resolution approving the defeated budget. On April 5, 2018, the director of the
DLGS certified the budget.
Loigman contested the adoption of the budget. Specifically, he challenged
the legality of the December 5, 2017 special meeting and the March 8, 2018
meeting, where the Township approved the budget by resolution. On April 11,
2018, the LFB held a public meeting where it considered written submissions
and testimony from Loigman, Township counsel, and Board counsel. The LFB
determined both the special meeting and the subsequent resolution proceedings
met the statutory requirements, protocol, and procedures for a public hearing,
and affirmed the DLGS director's decision. This appeal followed.
I.
Our scope of review of an administrative agency action is limited and
highly deferential. If the agency decision is supported by sufficient credible
evidence in the record and was not "arbitrary, capricious, or unreasonable," it
will be affirmed. Brady v. Bd. of Review, 152 N.J. 197, 210 (1997) (citing In
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4
re Warren, 117 N.J. 295, 296 (1989)). In making our determination, we must
examine: "(1) whether the agency's decision conforms with relevant law; (2)
whether the decision is supported by substantial credible evidence in the record;
and (3) whether, in applying the law to the facts, the administrative agen cy
clearly erred in reaching its conclusion." Twp. Pharmacy v. Div. of Med.
Assistance & Health Servs., 432 N.J. Super. 273, 283-84 (2013) (citing In re
Stallworth, 208 N.J. 182, 194 (2011)).
Appellants argue the vote held at the December 5, 2017 special meeting
was invalid because the Board failed to provide mail-in ballots to absent legal
voters. They contend the Board did not engage in a review of the director's
decision, did not make findings of fact and conclusions of law, and simply
endorsed the budget. Appellants also argue the Township's passage of the
resolution approving the Board's proposed budget was invalid because notice of
a public hearing was not provided. We address these arguments in turn.
A.
Appellants assert the notice of the December 2017 meeting was invalid
because no mail-in ballots were provided as required by the Vote By Mail Law,
N.J.S.A. 19:63-1 to -28. We disagree.
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A statute is construed in accordance with its plain meaning. DiProspero
v. Penn, 183 N.J. 477, 492-93 (2005). "A court should not 'resort to extrinsic
interpretative aids' when 'the statutory language is clear and unambiguous, and
susceptible to only one interpretation[.]'" Id. at 492 (quoting Lozano v. Frank
DeLuca Const., 178 N.J. 513, 522 (2004)).
A reading of the plain language of The Vote By Mail Law demonstrates it
applies to elections, not special meetings. The statute states a qualified voter
shall be entitled to vote using a mail-in ballot "in any single election held in this
State." N.J.S.A. 19:63-3(a)(2). An election is defined according to the
definitions provided in Title 19. See N.J.S.A. 19:63-2. Title 19 defines a "[f]ire
district election" as "an election to be held in and for a fire district established
pursuant to [N.J.S.A. 40A:14-70 to -105.1]." N.J.S.A. 19:1-1.
The December 5, 2017 vote during the special meeting was not an
election. Indeed, the "elections" referred to in N.J.S.A. 40A:14-70 to -105.1
pertain to the general elections for board member candidates of fire districts or
public questions related to a fire district's functions. See N.J.S.A. 40A:14-72(a).
Pursuant to the statute, these elections are held annually at set times, namely, on
the third Saturday of February, the first Tuesday after the first Monday in
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November, or another annual date decided upon by a newly created fire district.
Ibid.Notwithstanding, the record reflects there was adequate notice for the
budget vote. Notice, instructions, and an application were provided to voters
seeking a mail-in ballot in order to vote on the Board's proposed budget.
Furthermore, N.J.S.A. 40A:14-84 sets forth the procedural requirements
for special budgetary meetings for fire districts. The statute provides:
The legal voters, at the annual meeting or at a
special meeting called by the commissioners of the fire
district, may vote to raise money for a firehouse,
apparatus and appliances in connection therewith for
fire extinguishing purposes, in an amount not
exceeding [five] mills on the dollar of the last assessed
valuation of the property in the fire district. . . .
Any such special meeting shall be called on [ten]
days' notice by the board of fire commissioners, to be
posted in five public places in the district, setting forth
the time, place and object of the meeting and the legal
voters shall determine the amount of money to be
raised.[2]
Here, again, the record reflects ten days' notice of the special meeting was
provided. Also, as we noted, notice was published in the Asbury Park Press and
2
This was the statutory language applicable at the time of the parties' dispute.
It has since been amended, effective January 1, 2019. However, the amended
statute has no bearing on this appeal.
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posted in five public places within Lakewood Township. The notice stated the
time, place, and purpose of the special meeting, including the proposed capital
projects and the specific cost of each project. The LFB reviewed the notices and
evidence of their publication when it affirmed the director's decision to certify
the Board's proposed budget. The LFB's finding that notice of the special
meeting met the statutory requirements of N.J.S.A. 40A:14-84 was supported by
sufficient credible evidence, and were neither arbitrary, capricious, or
unreasonable, nor reflective of a rubber stamp of the director's decision.
B.
Likewise, we reject appellant's argument the Township's budget approval
should be invalidated due to the failure to advertise and conduct a public
hearing, as required by N.J.S.A. 40A:14-78.5(b). Appellants contend notice was
inadequate because it did not use the specific wording of "public hearing" when
it was published in The Star Ledger and the Asbury Park Press.
N.J.S.A. 40A:14-78.5(b) provides:
If at the annual election the question of finally
adopting the budget is voted negatively upon by a
majority of the legal voters voting in the election, the
governing body of the municipality in which the fire
district is located shall, by resolution of a majority of
its full membership, within [thirty] days after the
annual election and after a public hearing for which the
legal voters of the fire district shall be given [five] days'
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advertised notice, and at which any interested person
shall be heard, fix an annual budget for the fire district.
The amount of each appropriation section of the budget
so fixed shall not exceed the amount for each as
previously voted upon at the annual election, except the
appropriation for debt service which shall be included
in the amount that is required to be paid. [3]
Here, the Township issued notice, which read as follows:
Please take notice that [the Township] will be
voting on the 2018 Lakewood Fire budget at the next
regularly scheduled Township Committee Meeting on
Thursday, March 8, 2018 at 7:30 [p.m.] located in the
Lakewood Municipal Building, Auditorium, 231 Third
Street, Lakewood, New Jersey 08701. Please be
advised formal action will be taken at this meeting.
The record reflects the meeting was public, as residents appeared and
testified regarding the proposed budget. The meeting was held within thirty
days of the budget's defeat and a detailed advertised notice was provided on five
days' notice of the meeting. Although the word "hearing" was not used, our
review of the record does not persuade us the plainly worded description of the
meeting failed to inform legal voters the meeting was open to public
participation.
Affirmed.
3
This was the statutory language applicable at the time of the parties' dispute.
This statute has also been amended, effective January 1, 2019. However, the
amended statute has no bearing on this appeal.
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