SEAVIEW HARBOR REALIGNMENT COMMITTEE, LLC VS. TOWNSHIP COMMITTEE OF EGG HARBOR TOWNSHIP (L-0079-17, ATLANTIC COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3048-19
SEAVIEW HARBOR
REALIGNMENT
COMMITTEE, LLC,
JOHN DABEK, DIAN DABEK,
EDWARD MCGLINCHEY,
VIRGINIA MCGLINCHEY,
JOSEPH STEWART, and
PAMELA STEWART,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants/
December 29, 2021
Cross-Respondents,
APPELLATE DIVISION
v.
TOWNSHIP COMMITTEE OF
EGG HARBOR TOWNSHIP, and
EGG HARBOR TOWNSHIP,
Defendants-Respondents/
Cross-Appellants.
___________________________
Argued November 1, 2021 – Decided December 29, 2021
Before Judges Sabatino, Rothstadt and Natali.
On appeal from the Superior Court of New Jersey, Law
Division, Atlantic County, Docket No. L-0079-17.
John Paul Doyle argued the cause for appellants/cross-
respondents (Carluccio, Leone, Dimon, Doyle & Sacks,
LLC, attorneys; John Paul Doyle, of counsel and on the
briefs; Marguerite Kneisser, on the briefs).
Marc Friedman argued the cause for respondents/cross-
appellants (Marc Friedman and Barker, Gelfand, James
& Sarvas, attorneys; Marc Friedman and Jeffrey P.
Sarvas, on the briefs).
The opinion of the court was delivered by
NATALI, J.A.D.
Plaintiffs, Seaview Harbor Realignment Committee, LLC, and certain
residents of Seaview Harbor (Seaview), a section of Egg Harbor Township, filed
a petition for deannexation under N.J.S.A. 40A:7-12 with the Township
Committee, seeking to annex their small community to the neighboring Borough
of Longport. After the Committee referred plaintiffs' petition to the Planning
Board, the Board held over thirty days of hearings to assess whether the social
and economic harm that Seaview would sustain if deannexation was denied
outweighed the harm that would visit Egg Harbor if the petition was granted.
The Board completed an impact report and recommended the Committee
reject Seaview's petition. The Committee reviewed the impact report and
adopted a resolution accepting the Board's recommendations based primarily on
the harm that deannexation would cause Egg Harbor residents. It also adopted
a separate resolution determining that plaintiffs failed to comply with N.J.S.A.
40A:7-12's jurisdictional requirement as they failed to clearly delineate the land
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subject to deannexation and establish that Longport and Seaview were
contiguous.
Plaintiffs filed a four-count complaint in lieu of prerogative writs
challenging the Committee's determinations. Count one sought a determination
that the Committee's refusal to consent to deannexation was arbitrary and
unreasonable; count two sought a determination that plaintiffs' petition and
accompanying map were proper and complete and to set aside the resolution
declaring otherwise; count three alleged a violation of the New Jersey Open
Public Meetings Act, N.J.S.A. 10:4-6 to -21, and Open Public Records Act
(OPRA), N.J.S.A. 47:1A-1 to -13; and count four asserted a violation of the New
Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2. Judge Julio Mendez bifurcated
count four and assigned it a separate docket number.
The parties thereafter cross-moved for partial summary judgment. Judge
Mendez issued a March 8, 2019 order and written opinion granting plaintiffs
summary judgment on count two, concluding that their petition complied with
the requirements of N.J.S.A. 40A:7-12 and they established Seaview is
contiguous with Longport under that statute, and count three, finding that
defendants had violated OPRA. Before us, defendants do not challenge the
judge's ruling on count three or his decision to bifurcate count four.
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Judge Mendez held a two-day final hearing regarding count one and, on
February 18, 2020, issued an order denying relief to plaintiffs. In his
accompanying written opinion, Judge Mendez applied the three-part test
enumerated in N.J.S.A. 40A:7-12.1,1 finding that, although plaintiffs established
that the Committee's refusal to consent to deannexation was detrimental to a
majority of Seaview residents, that denial was neither arbitrary nor
unreasonable, and plaintiffs failed to establish that deannexation would not
cause significant harm to the well-being of Egg Harbor.
On appeal, plaintiffs challenge the court's order, primarily contending that
the judge erred when he concluded that Egg Harbor's residents would suffer
significant harm if deannexation was approved and that this harm outweighed
the injury Seaview residents would suffer by being a part of Egg Harbor.
1
N.J.S.A. 40:7-12.1 provides:
In any judicial review of the refusal of the governing
body of the municipality in which the land is
located . . . to consent to the annexation, the petitioners
have the burden of establishing that [1] the refusal to
consent to the petition was arbitrary or unreasonable,
[2] that refusal to consent to the annexation is
detrimental to the economic and social well-being of a
majority of the residents of the affected land, and [3]
that the annexation will not cause a significant injury to
the well-being of the municipality in which the land is
located.
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Plaintiffs also raise a bias challenge, claiming that members of the Committee
and Board, specifically Mayor James McCullough, Township Administrator
Peter Miller, and Committee member Frank Finnerty, all of whom recused
themselves, had predetermined that they would oppose the petition and
influenced other members to do the same, rendering the final decision arbitrary,
capricious, and unreasonable. Defendants cross-appeal, challenging the court's
finding that plaintiffs established Egg Harbor's refusal to consent to
deannexation would be detrimental to a majority of Seaview residents, and that
plaintiffs met the jurisdictional requirement of adequately identifying the land
subject to deannexation and establishing that it was contiguous with Longport.
We reject plaintiffs' arguments and affirm substantially for the reasons
expressed in Judge Mendez's written opinion but write separately to amplify the
bases for our decision in light of the significant issues raised by the parties and
to emphasize that a petition under N.J.S.A. 40:7-12.1 may be appropriately
denied where a court concludes that a municipality's decision was neither
arbitrary nor unreasonable and that it would be detrimental to the majority of
residents despite the undisputed fact that deannexation would produce
considerable property tax savings for the petitioning homeowners, who seek to
become part of a lower tax municipality. That detriment can include the loss of
significant services to the community at large, removal of a diverse citizenship,
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and likely erosion of valuable civic participation caused by the absence of those
homeowners who seek to deannex from the community.
Based on our decision, we do not address the merits of defendants' cross -
appeal as those arguments fundamentally challenge the court's findings and not
its judgment, in which defendants were successful before the court. See Price
v. Hudson Heights Dev. LLC, 417 N.J. Super. 462, 463 (App. Div. 2011).
I.
We detail below salient parts of the record developed before the Board
and which are relevant to our decision. Egg Harbor is a municipality of
approximately 43,000 residents. It is comprised of a seventy -five square-mile
area of primarily residential mainland communities in the southeast section of
Atlantic County. The eastern section of the Township contains a marsh with
various water channels.
Seaview is located at the southeast portion of the marsh, next to a
waterway that runs between Seaview and Longport. The Seaview section is
approximately 70.9 acres in size and 4.3 miles east of the mainland portion of
the Township, separated by marshland and multiple municipalities. It comprises
approximately 1% of Egg Harbor's total land area and has a population of 102
residents with ninety-two residential homes, two vacant lots approved for
residential use, a utility lot, a marina with 300 boat slips, a restaurant, and a
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beach with no public access. The homes are relatively new, having first been
developed in the early 1960s. The marina was constructed later an d opened in
1987.
Because a marsh separates Seaview from Egg Harbor, Seaview residents
claimed that they rarely travel to the mainland and did not feel that they were a
part of that community. Instead, they relied primarily on Longport, connected
to Seaview by way of the Route 152 bridge, for most of their activities and
services as the drive to Longport is much shorter than the drive to the Township
mainland, especially in traffic.
In support of their claim that continued association with Egg Harbor was,
and will be, detrimental to their social and economic well -being, plaintiffs stated
they identified with Longport residents, and explained the many activities in
which they participate in that municipality, such as shopping, dining, sports, and
religious services. Further, while Seaview had only a handful of school age
children, plaintiffs also testified that none attended Egg Harbor public schools,
as the drive took over an hour and the children had few friends in Egg Harbor
because, as noted, most residents socialized and participated in activities in
Longport.
Consistent with their identification as Longport residents, plaintiffs stated
many of their homes had Longport addresses and zip codes, which often resulted
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in confusion as to their location and status as Egg Harbor residents. Resulting
delays in mail delivery occurred, and residential discounts and benefits through
Egg Harbor were occasionally not applied. Plaintiffs also felt that Egg Harbor
was not concerned with their well-being.
Further, plaintiffs considered Egg Harbor's emergency services to be
inadequate, untimely, and a reflection of the municipality's disregard for their
needs. They complained that Egg Harbor police and firemen did not always
know where their homes were located, and took too long to respond to calls for
help. Most times, Longport provided them the emergency services they needed.
They also claimed that the fire department had an insufficient water supply
within Seaview and that Egg Harbor had resisted efforts to improve that critical
need.
Plaintiffs also claimed that snow removal was rarely done in a timely
manner, which resulted in private residents plowing the roads, and that trash was
picked up only once a week. They presented evidence that in neighboring shore
towns like Ocean City, Longport, and Margate, trash pickup occurred biweekly,
at least in the summer months.
Plaintiffs further maintained that Egg Harbor resisted efforts to beautify
and maintain Seaview's common areas and had only recently agreed to cut the
grass in its public spaces. They believed Egg Harbor's response to remedy the
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effects of Superstorm Sandy was inadequate and contended the municipality
should assist residents with dredging efforts and bulkhead maintenance.
Plaintiffs also claimed that Seaview was improperly zoned similar to the
mainland section of Egg Harbor where lots were typically larger resulting in
Seaview residents having to request variances for construction projects.
In addition, plaintiffs expressed disagreement with Egg Harbor's alleged
failure to participate in flood insurance programs, resulting in their payment of
higher premiums with less benefits. They claimed their premiums would be
reduced if they were part of Longport as Longport was located in a flood zone
and participated in the types of insurance programs that benefited similarly
situated homeowners.
Finally, plaintiffs maintained they would pay significantly less in property
taxes if they were Longport residents. Pursuant to a 2013 reassessment, Egg
Harbor's tax rate was 2.376% while Longport's tax rate was only .388%.
On that point, plaintiffs' accountant Stephen Ryan testified that the
average yearly property tax a Seaview resident paid to Egg Harbor was $20,759,
based on an average assessed home value of $873,000. By comparison, t he
average yearly tax Seaview residents would pay to Longport was $3,347, for a
savings of $17,412. The primary reason for the difference was the amount
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attributed to school expenditures and associated taxes as Longport had fewer
children and therefore required less money to satisfy its educational obligations.
In 2014, Egg Harbor's total revenue was $37,452,455, 56% of which was
derived from property taxes and 44% from various sources including municipal
fees, state aid, state grants, interlocal service agreements, municipal court fees,
ambulance fees, delinquent taxes, and construction fees. Seaview homeown ers
paid $1,839,847 in school taxes and $507,404 in municipal taxes for a total of
$2,347,251.
Ryan explained that if Egg Harbor lost this revenue through deannexation,
it could recoup the loss by raising remaining Egg Harbor residents' taxes a small
amount, noting that Seaview residents contributed only 1% to the municipality's
total revenue. According to Ryan, Egg Harbor could increase yearly property
taxes on mainland residents by only $120.70 (a $27.05 municipal tax increase
plus a $93.64 school tax increase), which would be less than the $176.61 average
yearly tax increase Egg Harbor imposed in recent years.
Ryan also stated that he believed Egg Harbor could easily recoup this
small loss in revenue from other sources. He said that it "has shown through
ingenuity and resourcefulness the ability to generate new revenues, given their
local service agreements" such as ambulance fees, which produced $1.2 million.
Seaview, however, was unlikely to produce additional revenue for Egg Harbor
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because it was nearly all developed. Although slight revenue increases could be
realized if homes were expanded, in reality few opportunities for development
existed.
With respect to bonding, Ryan explained that a municipality may not bond
more than 3.5% of its equalized valuation based on a three-year average. Using
an equalization value as of 2012, Ryan concluded that Egg Harbor could borrow
$152,567,632, and that the municipality's bonding capability would not be
significantly affected by deannexation. Similarly, the school had a sufficient
amount of funds available to borrow, so its bonding ability would also not be
significantly affected.
Plaintiffs also produced a report from professional planner Tiffany A.
Cuviello who concluded that deannexation would not harm Egg Harbor in any
significant way and it made sense to do so based on location, identity, and the
similarities between Seaview and Longport. She noted that the Seaview and
Longport were both small residential shore towns with a significant population
of seasonal-use homeowners. By contrast, 93% of the Egg Harbor population
were permanent residents compared with only 47% in Seaview and 28% in
Longport. Cuviello also noted that because Seaview had no public beaches, Egg
Harbor residents would not be denied any benefit by granting deannexation.
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Seaview residents, however, were denied a voice in Longport, where they went
for most activities and services.
Cuviello added that as to municipal growth, Egg Harbor was designated a
Regional Growth Area within the Pinelands under N.J.A.C. 7:50-5.13, and this
designation would continue the "significant growth" Egg Harbor had seen in the
past twenty years. According to the municipality's 2008 plan, its focus was on
management of the 23% of land available for development. Seaview by contrast,
was fully developed and would not contribute to growth and was not even
recognized or included in Egg Harbor's short- or long-term growth plans.
Egg Harbor strenuously objected to Seaview's petition. Peter Miller, who
served as Township Administrator for the preceding twenty-five years, stated
that plaintiffs were simply attempting to avoid the higher property taxes imposed
by the 2013 reassessment. He explained that the majority of their complaints
regarding services were either unsupported or contradicted by Egg Harbor
records, and their choice for social activities and schools would remain their
choice regardless of whether they were annexed to Egg Harbor or Longport.
For example, with respect to plaintiffs' claims that they felt disassociated
with Egg Harbor and it did not consider their needs, Miller testified that in the
preceding thirty years, Seaview residents had been more actively involved in
Egg Harbor planning and government than any other group. Since the 1980s,
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twelve Seaview residents served on the Egg Harbor Committee, Planning Board,
Zoning Board of Adjustment, Economic Development Commission, Township
Golf Corporation, Municipal Utilities Authority, and Environmental
Commission, and as Miller testified, Egg Harbor "would be an entirely different
community" if the Seaview residents had not "exert[ed] the influence and
participation" in the development and planning.
With respect to plaintiffs' complaints that they had difficulty receiving
mail and packages because people were confused by their addresses, Miller
produced a letter from the postal service which stated that mail delivery was
determined by zip code, not town name. As long as the zip code was correct, he
asserted mail was delivered without issue.
As to plaintiff's complaints regarding the landscaping of common areas,
Miller said Egg Harbor did not provide that service to any community within
the municipality. With respect to municipal setbacks and zoning, Miller stated
the Seaview developer had initially determined the setbacks and included them
in the deeds. In 2000, a reexamination report proposed by Egg Harbor
recommended decreasing setbacks for Seaview because the lots were smaller,
and variances were needed too frequently. That recommendation was adopted,
and since 2000, no Seaview resident has requested a variance.
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Miller also disputed plaintiffs' complaints that Egg Harbor did not timely
respond to requests for aid after Superstorm Sandy and stated that Egg Harbor
had repaired damaged Township property without delay. He explained that
plaintiffs' complaints were more properly directed to the state, as it was
primarily responsible for recovery efforts.
Miller also testified that, contrary to plaintiffs' claims, Egg Harbor
participated in flood insurance programs for the past forty years. He explained
that roughly ten years earlier, Egg Harbor considered participating in a program
called the Community Rating System (CRS) and decided against it because it
would have cost $15,000 and saved only four hundred owners $10,000 total.
That program has since changed and was now affordable, and as of 2013, Egg
Harbor was in the process of obtaining the requisite certi fications for the CRS
program, and prior to Superstorm Sandy, Egg Harbor began the process of
participating in an additional flood insurance program.
In response to plaintiffs' complaints regarding maintenance of roads and
common areas, Alan Simerson, Department of Public Works Director, testified
that Seaview streets were swept at least twice a year and common lawn areas
were regularly mowed. Further, if a storm resulted in debris, Egg Harbor
provided additional clean up and sweeping and it also removed debris and litter
on the shore.
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Further, after Superstorm Sandy, Egg Harbor began cleanup the day after
the storm and continued the cleanup seven days a week, sixteen hours a day for
two weeks with cleanup efforts continuing six days a week until they were no
longer needed. Egg Harbor also placed a dumpster in Seaview for residents to
dispose of materials themselves.
With respect to snowstorms, Simerson said Egg Harbor experienced
nineteen events between 2009 and 2015, and Seaview received plowing services
twenty-five times during that time. He stated that no residents of Seaview
requested emergency plowing services during two blizzards occurring in that
timeframe.
In recent years, Simerson said Egg Harbor also completed the following
repair and improvement projects for the costs noted: repair and replacement of
a drainage pipe in 2004 ($10,000); removal and replacement of center islands,
concrete, and curbing in 2006 ($19,000); drainage replacement in 2007 that
included the replacement of a faulty pipe at the end of a street ($62,536);
replacement in 2012 of traprock that had eroded at the end of a street ($1,500);
and repair of erosion caused by Superstorm Sandy in 2013 ($33,465). Finally,
Simerson stated if Seaview seceded from Egg Harbor, Township residents would
suffer harm because his department would have to decrease its staff due to a loss
of tax revenue, which would result in loss of services.
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Raymond Davis, Egg Harbor's Chief of Police, testified that while there
was no formal agreement with nearby police departments, adjoining
municipalities agreed that the department most able to respond to a call in the
quickest manner would do so. This would not change if Egg Harbor consented
to deannexation. He said that between January 1, 2011 and July 1, 2015, thirteen
"priority calls" for police were made by Seaview residents, and the average
response time was 11.74 minutes.
Chief Davis testified that if Seaview were not part of Egg Harbor, there
would be a 17% overall loss in tax revenue, which would result in a loss of at
least $175,000 to $200,000 per year for the police department. If the budget
were reduced by that amount, Chief Davis stated the department would be forced
to decrease the number of officers and community policing programs , which
would harm Egg Harbor residents.
Robert Winkler, III, Chief of the Fire Department, testified that the fire
department also had an informal agreement with neighboring departments to
provide the fastest response to calls for help, regardless of location. He believed
service would be impacted if Egg Harbor lost the tax funds that Seaview
provided as the department was comprised of volunteers with a limited budget
that would be affected by any cuts.
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Donald Stauffer, Egg Harbor's Fire Subcode Official, explained that while
the water system in Seaview was not sufficient to fight a serious fire, Egg Harbor
had plans in place to address any serious incident. In cases where additional
water was needed, other fire companies would respond to provide additional
water and a fire boat could pump a thousand gallons of water per minute from
the ocean.
In response to Ryan's testimony that the school would not suffer from
revenue lost due to deannexation, Kateryna Bechtel, School Administrator for
Egg Harbor, disagreed and testified that cuts would have to be made if Egg
Harbor did not have revenue from Seaview. To comply with the minimum state
standard of funds per student, the school district needed $52,339,929. Currently,
the budget, including debt service, was $132 million. Without debt service, it
was "over $72 million," or roughly $20 million more than the state minimum,
because it included programs that the state did not require, an example of which
was tuition to send students to the Atlantic County Institute of Technology. The
State froze school aid, and this added to the problem of having to rely on
property taxes to fund the school's needs.
Bechtel said that if deannexation were granted, the school would lose
approximately $1.88 million in funding from Seaview. Pursuant to the 2% tax
levy required by state law, the school could not increase taxes more than 2% a
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year, excluding increases to pay health benefits for employees and debt servic e.
In the last year, the school tax increase was 2.77%, the majority of which was
attributed to employee health benefits expenses. Thus, it did not have the ability
to increase taxes to compensate for the losses.
She also stated that if she were required to issue recommendations to
reduce the budget, she would propose the following cuts: afterschool bus
transportation; freshman sports programs; middle school sports and afterschool
clubs; five-run bus drivers in order to maintain only four-run drivers to avoid
providing them benefits; full-time paraprofessionals to be replaced with part -
time paraprofessionals; the number of guidance counselors in high and middle
schools; gifted and talented programs up to third grade; middle school honors
math and science programs; attendance officers; and the Latin program.
Together, those reductions would total approximately $1.88 mill ion.
Further, Bechtel explained that if the school lost $1.88 million in funds, it
would decrease the school's debt margin by 3.5%, or $3.5 million, which would
reduce the school's ability to borrow money by $3.5 million. With respect to
savings if deannexation occurred, Bechtel said Egg Harbor would "save some
money in transportation costs," but the saving was insignificant. On this point
she stated there were five students in Seaview, and the statutory amount for
transportation was $884 per student. Thus, Egg Harbor would save only $4,420.
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As to future expenditures that would be affected by Seaview's
deannexation petition, Bechtel said that the School Board was considering
construction projects to improve the school as well a change from half- to full-
day kindergarten, both of which would require additional funding. Egg Harbor
may also have to provide affordable housing, which would increase the student
population and require more classrooms and resources.
Dr. Richard Perniciaro, Executive Vice P resident for Planning Research
at Atlantic Cape Community College, provided information as to the economic
impact of deannexation. He explained that like investments, it is advantageous
for a municipality to maintain diversity in a tax base to "hedge[] against good
times and bad times." Seaview was "significantly wealthier" than other parts of
Egg Harbor and provided a high tax base not otherwise available in Egg Harbor.
It also provided diversity in property as it was the only waterfront location
within Egg Harbor. Unlike parts of the mainland where values were subject to
fluctuation, Seaview was likely to increase in value and therefore concluded Egg
Harbor would suffer economically if it lost Seaview.
Township Financial Auditor Leon Costello agreed with Dr. Perniciaro.
He testified that in 2012, the total assessed value of all homes in Seaview was
$28 million, and that figure increased to $80 million after the 2013 reassessment.
In 2015, Seaview homeowners paid $1,819,951.52 in school taxes and
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$505,542.09 in municipal taxes. Thus, if deannexation occurred, Egg Harbor
would lose $2,325,493.61 in tax revenue. In terms of percentages, if Egg Harbor
recouped the loss by increasing mainland homeowners' taxes, those residents
would see a 4.6 cents increase per $100 of assessed value for school taxes and a
1.3 cents increase per $100 for municipal taxes, for a total increase of 5.9 cents
per $100 of assessed value. For the average mainland home with an assessed
value of $208,100, the yearly tax would increase by $122.78.
Costello did not believe that the loss could be addressed without raising
taxes. He ruled out relying on the emergency fund, explaining that in 2013, the
fund totaled only $535,000. That amount was "extremely low" in comparison
to other towns, and reducing it would affect Egg Harbor's bonding rates. Egg
Harbor's rating was currently four steps lower than the highest rating, which he
said was not particularly good, and if the amount decreased, so would Egg
Harbor's rating.
On January 29, 2016, Stuart Wiser, a Professional Planner with
Remington, Vernick & Walberg retained by the Board, issued an extensive
report summarizing the evidence presented at the Planning Board hearings and
discussing the impact deannexation would have on Egg Harbor. Wiser noted
that while plaintiffs claimed that they identified with Longport and di d not
participate in activities in Egg Harbor Township, no evidence established that
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plaintiffs had been deprived the opportunity to participate in Township
activities, services, or governmental decisions, and their complaints regarding
insufficient and untimely services and emergency responses were largely
countered by records or otherwise unsupported.
Further, Wiser concluded no significant change would occur if Seaview
were part of Longport because of the mutual aid agreements. Deannexation
would also have no significant effect on zoning and variances because
Longport's zoning was similar to the zoning in Seaview. Moreover, no evidence
was presented establishing that plaintiffs had been denied varian ces or had been
deprived the ability to build on their property. As to plaintiffs' complaints that
Egg Harbor did not aid residents in dredging efforts, Wiser wrote: "the
expectation that a municipality will commit significant taxpayer funds to
improve waterfront property is misguided at best," and was not the typical
practice of municipalities.
With respect to plaintiffs' alleged economic detriment caused by paying
higher flood insurance premiums based upon their residing in Egg Harbor, Wiser
reported that Egg Harbor participated in flood insurance programs that provided
residents a 25% discount. Plaintiffs' claim that their taxes would be less if they
were part of Longport was correct; however, Wiser noted that taxes were subject
to change, and deannexation would result in a significant loss of taxes to Egg
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Harbor. He believed the loss would require an increase in taxes to mainland
residents or a loss of services, both of which would cause "significant injury" to
Egg Harbor.
The Board concluded that plaintiffs failed to satisfy their burden to prove
that denying deannexation would be detrimental to Seaview residents and that
deannexation would not cause significant harm to Egg Harbor. It found that "a
balancing of the positive and negative impacts of deannexation weigh[ed]
heavily in favor" of denying consent. It also determined that plaintiffs'
complaints regarding services and zoning were not supported by evidence, and
plaintiffs' choice of school and social activities were private decisions that
would likely not be impacted by deannexation. Further, the Board explained
that confusion as to the location of homes due to town designations occurred in
other parts of the state as well and was not a basis to grant deannexation.
The Board conceded that plaintiffs would receive a benefit by paying less
taxes to Longport and would likely pay less in flood insurance premiums.
Deannexation, however, would deprive Egg Harbor of "the significant civic
participation" that Harbor residents had provided. Egg Harbor would lose "one
of its most unique upscale and affluent communities," which would "result in a
diminishment of a source of pride and prestige to the remainder of the Township
including the loss of social and economic diversity."
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Further, Egg Harbor would lose 2.4% of its tax ratables, which translated
to $505,542.09 in municipal taxes and $1,819,951.52 in school taxes. To
compensate for that loss, mainland residents would either experience a reduction
in services, including school programs, or pay an additional 5.9 cents per $100
of assessed value. In return, Egg Harbor would receive only "a de minimis"
reduction in services that it would no longer provide to Seaview. Egg Harbor
agreed with the Board's conclusions and denied consent.
As noted, after a two-day final hearing, Judge Mendez applied the three-
part test in N.J.S.A. 40A:7-12.1 and concluded that plaintiffs established that
Egg Harbor's refusal to consent to annexation was detrimental to a majority of
Seaview residents. He also determined, however, that plaintiffs failed to
establish that the refusal was arbitrary or unreasonable, or that annexation would
not cause significant injury to the well-being of Egg Harbor.
With respect to economic detriment to plaintiffs, Judge Mendez noted that
the Planning Board had recognized the tax and insurance benefits Seaview
residents would enjoy if they were part of Longport. Under Longport's tax rate,
the average Seaview homeowner would save $17,412 a year in property taxes.
Seaview residents would also likely pay less in flood insurance premiums
because unlike Longport, Egg Harbor had not participated in the CRS until
recently in 2017. The judge also found "some merit," however, in Egg Harbor's
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claim that plaintiffs were simply tax shopping since they filed their petition after
the 2013 tax assessment, which had resulted in a "significant tax increase" for
them.
In support of his decision, Judge Mendez discussed two opinions that
addressed successful challenges to denials of deannexation petitions: West
Point Island Civic Association v. Township Committee of the Township of
Dover, 54 N.J. 339, 342 (1969) (West Point Island), involving West Point
Island's petition for deannexation from Dover Township, and an unpublished
decision, Bay Beach Way Realignment Committee, L.L.C. v. Township Council
of Township of Toms River, No. OCN-L-2198-07PW (Law Div. July 22, 2008),
aff'd, No. A-5733-07T1 (App. Div. July 9, 2009) (Bay Beach Way),2 involving
a similar petition filed by Bay Beach Way seeking deannexation from Toms
River.
Judge Mendes concluded that the West Point Island and Bay Beach Way
cases supported plaintiffs' claim of social detriment based on geographical and
demographic similarities of Seaview and Longport. He explained that like Bay
Beach Way and West Point Island, Seaview is a small, fully developed beach
2
We cite to this unpublished opinion not as precedential authority but to explain
Judge Mendez's reasoning, acknowledging the proscriptions detailed in Rule
1:36-3.
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town whose residents do not identify with mainland residents, but rather with a
neighboring shore community, which is the source of nearly all their social
activities and services, and which matches their demographics. However, he
emphasized that unlike the mainland municipalities in West Point Island and
Bay Beach Way, the evidence in this case supported Egg Harbor's conclusion
that deannexation would be significantly detrimental to the majority of its
residents.
As to social detriment, based on plaintiffs' allegations of in sufficient
emergency services, Judge Mendez found that it weighed in plaintiffs' favor,
though not heavily. The geographic location of Seaview resulted in Longport's
providing emergency services to Seaview as first responders, which resulted in
social injury to plaintiffs who were denied annexation to Longport. However,
the judge emphasized that no evidence established that any Seaview resident
was denied emergency services when needed.
Judge Mendez rejected plaintiffs' claim that social detriment was a lso
established by the distance residents had to travel into the mainland for
municipal services. While that distance was inconvenient, it did not rise to the
level of a detriment, particularly since residents infrequently had to visit
municipal buildings, and voting by mail was an option.
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The judge found that plaintiffs' claim of social harm based on community
life, including use of schools, was in equipoise. He explained that while
plaintiffs conducted nearly all their activities in Longport and did not send their
children to Egg Harbor schools, Seaview residents had been actively involved
in Township government and civic groups, which Egg Harbor would lose if
deannexation occurred.
Judge Mendez found that plaintiffs had failed to meet their burden o f
showing that deannexation would not cause significant injury to the well -being
of Egg Harbor residents. He found significant the lost tax revenue of $2,325,000
(based on $91 million in ratables), even though it comprised only 1.3% of Egg
Harbor's budget and Egg Harbor had 22.7% of total land (fourteen square miles)
available for future growth. Egg Harbor residents would endure a 5.9 cents per
$100 increase to compensate for the loss, which translated to a yearly increase
of $122.78 for the average homeowner. Egg Harbor had concluded that its
residents could not endure the loss in tax revenue and had emphasized that the
municipal budget could not be increased above two percent, and Egg Harbor
was "in a state of economic stress as a result of state mandat es," the state's failure
to adequately fund programs, "the economic recession, reductions in property
values and the casino crisis in Atlantic City."
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The judge recognized that a $122.78 increase in taxes was much less than
the difference in taxes Seaview residents would enjoy if annexed to Longport
(i.e., they would pay $17,992 less, on average), but found that the loss of revenue
to Egg Harbor year after year "would be a monumental loss" that would also
negatively impact Egg Harbor's bond rating.
Further, the loss could result in a reduction of police services—primarily
community-based services—as well as reductions in the fire department's ability
to maintain equipment and facilities and purchase new equipment. Because the
municipalities had a mutual aid agreement, Township emergency personnel
would continue to respond to calls for help, and no quantifiable savings would
be enjoyed by Egg Harbor in this respect. "[S]ignificantly add[ing] to the injury"
was the effect the lost revenue would have on the schools. Programs, staffing,
and quality of education would suffer, while the school would reap a benefit of
only $4,420 for transportation reimbursements currently paid to Seaview
residents who use other schools.
Additionally, deannexation would deprive Egg Harbor of the civic and
government participation of Seaview residents and result in the loss of "the
Township's most unique affluent and upscale communities which affects the
Township's prestige, social standing and diversity."
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27
Judge Mendez concluded that "there [was] more than sufficient evidence
to support the findings" of Egg Harbor on the detriment to its residents if
deannexation occurred. He noted that the municipality was "best equipped to
evaluate local impact and be acutely sensitive to the needs of [its] residents."
The judge also rejected plaintiffs' bias-based claims, finding that plaintiffs
had received a fair hearing and that Egg Harbor's final decision was based on
the evidence. He said that deannexation was a "high-profile and politically
charged event in Egg Harbor," but the record gave him "great comfort that
Seaview Harbor received a fair hearing." Judge Mendez also noted that
McCullough had recused himself as a voting member from the Planning Board,
and both Finnerty and McCullough recused themselves from the Committee. He
concluded that Egg Harbor's refusal to consent was not unreasonable, arbitrary ,
or capricious.
Before us, plaintiffs contend Judge Mendez mistakenly concluded Egg
Harbor did not act arbitrarily or unreasonably in denying consent to
deannexation. More specifically, they claim that he erred in: (1) finding social
harm and economic harm to Egg Harbor residents if deannexation were granted;
(2) weighing the relative harms; and (3) rejecting plaintiffs' bias -related claims
and rejecting their motion to supplement the record with additional evidence.
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II.
A municipality's refusal to consent to deannexation is subject to review
by the trial court "'under the standard principles of arbitrariness or
unreasonableness.'" Avalon Manor Improvement Ass'n, Inc. v. Twp. of Middle,
370 N.J. Super. 73, 90 (App. Div. 2004) (quoting Russell v. Stafford Twp., 261
N.J. Super. 43, 48 (Law Div. 1992)). Because municipalities "have particular
knowledge of local conditions," they have traditionally been afforded "'wide
latitude in the exercise of their delegated discretion,'" and their decisions are
presumed valid. Id. at 91 (quoting Booth v. Bd. of Adjustment of Rockaway
Twp., 50 N.J. 302, 306 (1967)). The presumption is overcome only upon a
showing of arbitrariness or unreasonableness, which have been interpreted to
mean "'willful and unreasoning action, without consideration and in disregard
of circumstances.'" D'Anastasio Corp. v. Twp. of Pilesgrove, 387 N.J. Super.
247, 251, (Law. Div. 2005) (quoting Beattystown v. Dep't of Env't Prot., 313
N.J. Super. 236, 248 (App. Div. 1998)). Where two conclusions may be reached,
a decision is valid "'when exercised honestly and upon due consideration, even
though it may be believed that an erroneous conclusion has been reached.'"
Worthington v. Fauver, 88 N.J. 183, 204-05 (1982) (quoting Bayshore Sewerage
Co. v. Dep't of Envtl. Prot., 122 N.J. Super. 184 (Ch. Div. 1973), aff'd, 131 N.J.
Super. 37 (App. Div. 1974)).
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In 1982 the Legislature codified the current standard for deannexation
petitions, which includes the arbitrary and unreasonable standard, and places the
burden of persuasion on the petitioner. L. 1982, c. 182, § 2, codified as, N.J.S.A.
40A:7-12.1. "Prior to 1982 the burden was on the municipality to prove the
unreasonableness of the requested deannexation." Avalon Manor Improvement
Ass'n, 370 N.J. Super. at 90. The change signified a legislative intent to
"'impose[] a heavier burden on the petitioners, thereby making deannexation
more difficult or, perhaps, discouraging attempts to undertake the effort at all.'"
Id. at 91 (quoting Russell, 261 N.J. Super. at 50). Both before and after the 1982
amendment, courts have held that the deannexation statute conveys an intention
"'to give precedence to a more significant policy, that of preservation of
municipal boundaries and maintenance of their integrity against challenge
prompted by short-term or even frivolous considerations such as 'tax shopping'
or avoidance of assessments.'" D'Anastasio Corp., 387 N.J. Super. at 260
(quoting Ryan v. Mayor & Council of Borough of Demarest, Bergen Cnty., 64
N.J. 593, 606 (1974)).
With respect to the requirement that the petitioner show that refusal to
consent is detrimental to the economic and social well-being of a majority of
petitioners, courts have held that relevant considerations include, but are not
limited to: the geographic location of the area seeking deannexation and its
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physical connection, or lack thereof, to the municipality; the petitioner's
connection with both municipalities based on social interactions, emergency
services and location; demographics; services provided by the municipalities;
the petitioner's identity and sense of belonging; and the economic effect of
deannexation in terms of taxes or any other financial consequence such as
insurance premiums and construction costs or profits. See D'Anastasio Corp.,
387 N.J. Super. at 252; Avalon Manor Improvement Ass'n, 370 N.J. Super. at
78-80. Such considerations should not be limited to the date of the petition but
should extend into the future and consider the "prospect for and likelihood of
change." Avalon Manor Improvement Ass'n, 370 N.J. Super. at 102.
Notably, economic benefit to a petitioner does not necessarily equate to
economic detriment if the petition is denied. D'Anastasio Corp., 387 N.J. Super.
at 254. As the court explained in D'Anastasio Corp.,
a resident may sign a petition for deannexation because
the deannexation may result in less property tax. This
is clearly an economic benefit to the residents.
However, the [municipality's] refusal to consent may
not be detrimental to the economic and social well -
being of the residents. The residents may still be able
to pay the higher property taxes, thus not evidencing
detriment to the economic well-being of the residents.
[Ibid.]
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Further, courts have found improper petitions for deannexation where the
primary basis for the petition was to obtain a lower tax rate, avoid the expense
of sewage improvements, and obtain more favorable zoning to realize larger
profits on the resale of developed property. Ryan, 64 N.J. at 599 (sewage
improvements); D'Anastasio Corp., 387 N.J. Super. at 256 (zoning); Avalon
Manor Improvement Ass'n, 370 N.J. Super. at 86 (tax shopping).
With respect to the requirement that the petitioner establish that
deannexation will not cause significant injury to the well -being of the municipal
residents, a court should consider the economic and social effects deannexation
would have on the non-petitioning residents. In Ryan, the Court explained that
social detriment might be found in a community's being
deprived of the petitioner's participation in the
religious, civic, cultural, charitable and intellectual
activities of the municipality; their meaningful
interaction with other members of the community and
their contribution to its prestige and social standing; the
part they play in general scheme of their municipality's
social diversity; and, conceivably, the wholesome
effect their presence has on racial integration. These
are, of course, values which undergo change with the
times and are accorded different weight depending in
part on the composition of the community and its
governing body.
[Ryan, 64 N.J. at 605.]
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Also relevant is the municipality's plan for development and the social and
economic effect that deannexation would have on the municipality in the future.
Avalon Manor Improvement Ass'n, 370 N.J. Super. at 80, 101-02.
III.
As noted, plaintiffs first challenge Judge Mendez's finding that if
deannexation were granted, Egg Harbor residents would suffer social detriment
as a result of lost participation in civic groups and governmental activities,
claiming that Seaview residents' participation in those activities has been
decreasing and will continue to decrease. They claim no other loss to Egg
Harbor's social activities will occur because Seaview residents conduct those
activities in Longport, and Egg Harbor residents will continue to have access to
the marina and restaurant in Seaview. Moreover, they argue that Seaview
residents account for only 1/700 of the Egg Harbor population, and they are
geographically separate from the mainland. They also claim the record contains
no support for the finding that Egg Harbor would lose prestige and diversity if
deannexation occurs.
We disagree. Judge Mendez's finding that deannexation would
significantly harm Egg Harbor residents by depriving them of the benefit of
Seaview residents' participation in government and civic groups as well as the
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benefits associated with the high property value were supported by the record
and warrant our deference.
For example, civic group and government records showed the level of
Seaview residents' participation in such groups through the years, and plaintiffs'
claim that participation has decreased and will decrease is speculative. In
addition, the judge found, Seaview added to Egg Harbor's prestige and diversity,
both social and economic, as it was Egg Harbor's only shore town, and it had the
highest property values. See Ryan, 64 N.J. at 603 (underscoring that loss of "an
affluent community whose presence adds prestige to" a municipality "is not an
inconsiderable factor in determining whether social detriment would result from
deannexation," and it cannot "be lightly dismissed as mere 'snob appeal' and thus
unworthy for consideration").
Further, as Dr. Perniciaro explained, unlike mainland property, Seaview
property was not subject to fluctuations in value and was likely to increase with
time because it was a shore town. The diversity that it added to Egg Harb or's
tax base helped maintain income and counter fluctuations in investments and
revenue. See ibid. (stating that it was "certain that the owners of . . . exclusive
and expensive homes contributed substantially more to the Borough than they
cost in services").
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IV.
Second, plaintiffs challenge Judge Mendez's findings regarding the
economic impact to Egg Harbor residents, claiming that his decision "was based
almost exclusively on the economic consequences of deannexation to [Egg
Harbor]." Plaintiffs contend that the judge should have considered Egg Harbor's
decreased tax revenue in terms of percentages and ratios, "not absolute dollar
numbers," citing for support various statutes that discuss municipal taxes and
bonding in terms of percentages. They claim that the dollar amount of lost
revenue was based on the worst-case scenario and was unrealistic because forty-
four percent of Egg Harbor's revenue is derived from other sources. They
emphasized that in recent years Egg Harbor "has experienced an unprecedented
level of growth," which it expected to continue, and claim that growth would
produce tax revenue as well as revenue from construction fees and the like.
Plaintiffs also challenge the judge's finding that the police department,
fire department and schools would suffer from the loss in revenue, claiming that
all allegations in support of this were speculative and likely inaccurate.
Similarly speculative, they claim, was the finding that Egg Harbor's bonding
capability would be negatively affected by the loss of Seaview tax ratables.
Plaintiffs argue that even if Egg Harbor were to increase taxes for
mainland residents to compensate for the lost tax revenue, the increase would
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be a modest $122.78 per year on average, which was less than the average
increase of $176.61 that Egg Harbor had imposed in recent years. Because
$122.78 was less than the average yearly increases, plaintiffs argue that it cannot
form the basis for finding a significant injury. Further, because Egg Harbor's
growth was expected to continue over the next two decades, Egg Harbor would
obtain revenue from taxes and fees related to development.
We are not persuaded by any of these arguments. First, contrary to
plaintiffs' claims, nothing in the applicable deannexation statute requires the
court or municipality to consider tax consequences in terms of percentages or
ratios. N.J.S.A. 40A:7-12.1. Rather, the statute places the burden on the
petitioner to show that deannexation will not have a significant detrimental
effect on Township residents, which includes consideration of actual tax
consequences in the present and future. N.J.S.A. 40A:7-12.1. The statutes
related to municipal taxes that plaintiffs rely upon speak in terms of percentages
because they set forth law in general terms without consideration of specific
facts of a specific case. Indeed, it would make no sense to restrict consideration
to percentages when actual numbers are available, and those numbers paint a
clear picture of the effect that deannexation would have on the residents.
In this case, the tax consequence of deannexation would either cause a
loss in funding or a tax increase of $122.78 per year for the average Egg Harbor
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homeowner. As Judge Mendez found, that tax consequence is not de minimus,
unlike the economic consequences in West Point Island and Bay Beach Way.
As the Board explained, "[t]he Township continues to remain in a state of
economic stress as a result of state mandates, the failure of the state to
adequate[ly] fund programs including the gross receipts revenue, the economic
recession, reductions in property values and the casino crisis in Atlantic City."
Plaintiffs' claim that revenue could be recouped by future development
was entirely hypothetical and unsupported by any facts in the record. Further,
as the Board concluded, even if development occurred to produce additional
revenue, "increased ratables and revenue are for the benefit of the Township,
schools and citizens and are not properly used to simply counterbalance the loss
of revenues resulting from deannexation." These findings, relied upon by Judge
Mendez, are fully supported by the record.
Moreover, such an analysis is consistent with Avalon Manor Improvement
Ass'n, 370 N.J. Super. at 88, where the court rejected as improper the notion that
a township could recoup taxes lost due to deannexation by selling liquor or
municipal lands. In that case, Judge Lisa explained that "[w]ithout
deannexation, these revenue sources, if realized, would accrue to the benefit of
the taxpayers of the Township and would reduce their tax payments below the
current levels, or perhaps offset increases unrelated to a deannexation." Ibid.A-3048-19
37
To find that these funds should be used to remedy the economic harm that would
result from deannexation would be inequitable and inconsistent with the
standard set forth in N.J.S.A. 40A:7-12.1, which places the burden on the
petitioner to show no significant harm to Township residents. Ibid.Plaintiffs' claim that a $122.78 per year tax increase is not significant in
light of the average yearly tax increases Egg Harbor has typically imposed is
based on an improper assumption that Egg Harbor will not have to again impose
the typical tax increase. If it does and deannexation is granted, then the average
Egg Harbor homeowner would see an increase of $299.39 ($176.61 typical
increase + $122.78 to compensate for taxes lost due to deannexation). To
suggest that Egg Harbor should forego imposing the typical tax increase, which
presumably had been necessary to satisfy budgetary needs, in order to
compensate for lost taxes due to deannexation unfairly places the negative
effects of deannexation on the residents of Egg Harbor.
The alternative to not raising taxes to compensate for lost ratables would
be to cut funding. While plaintiffs challenge as speculative Egg Harbor's
conclusion that police, fire, and school budgets would be cut if taxes were not
raised, they provide no evidence to show that any of these budgets could
function as they were without raising taxes to recoup the loss from deannexation.
Logic alone defeats their argument; a budget that is not fully funded cannot fully
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38
support all items in the budget. The result is to either raise taxes or cut items
out of the budget. Egg Harbor concluded that its residents could not afford either
option, and that decision, like Judge Mendez's other findings that we have
addressed in our opinion, is entitled to deference, as they are supported by the
evidence.
V.
Third, plaintiffs contend Judge Mendez erred when he concluded that Egg
Harbor residents would sustain significant injury because in reaching that
determination, he failed to properly consider and weigh the significant economic
and social harm that Seaview residents would suffer if they were to remain as
Egg Harbor residents as compared to the minimal harm Egg Harbor residents
would experience if deannexation occurred. In plaintiffs' view, the tax
consequence to Egg Harbor residents is minimal compared to the tax
consequence they experience (i.e., Egg Harbor residents would pay a $122 tax
increase on average if deannexation were granted, while Seaview residents pay
$17,950 more in taxes as Egg Harbor residents than they would as Longport
residents).
They also claim that the social harm they have, and will continue to
endure, is significant as they are forced to be a part of a completely separate
mainland township that does not consider their needs and that is not their source
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39
of activities or identity. On this point, plaintiffs point to Egg Harbor's
willingness to completely close for repairs the Route 152 bridge, as opposed to
closing one side at a time as Longport ultimately insisted be done; refusal to add
a water pipe to the bridge during repairs in order to improve water supply for
fighting fires; failure, until only recently, to participate in the CRS, which would
have benefited Seaview residents with respect to flood insurance, based on
expense to mainland residents; and failure to timely remove snow. They also
claim Seaview residents have been denied the constitutional right to vote for the
officials who actually provide them with emergency services, and that Judge
Mendez failed to appreciate that depravation. We have carefully considered
these claims and reject them.
Here, the judge considered the unique geographical location of Seaview
as a non-contiguous section of Egg Harbor and properly weighed the relevant
harms and his finding that Egg Harbor residents would suffer significant harm
if deannexation occurred is supported by the record, as explained above. The
harm included not only the potential loss of services, but the removal of a critical
municipal resource—the diverse Seaview residents. That unique loss was not
limited to its current and future economic impact attendant to their removal from
the community, but also would have encompassed the transfer of a portion of
Egg Harbor's population that historically participated in all phases of local
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government, continued to participate, and brought significant and substantive
value to the deliberative decision-making process necessary for a healthy and
robust community and government.
The most significant harm that plaintiffs claim they will experience as a
result of their annexation to Egg Harbor is economic in nature: they pay
significantly higher taxes and higher flood insurance premiums as compared to
Longport residents. Plaintiffs fail to recognize, however, that such " tax
shopping," or expense shopping (i.e., lower insurance rates), is an improper
basis upon which to grant deannexation. See Ryan, 64 N.J. at 606; D'Anastasio
Corp., 387 N.J. Super. at 261; Avalon Manor Improvement Ass'n, 370 N.J.
Super. at 86.
Moreover, as the D'Anastasio Corp. court explained, higher taxes standing
alone do not establish economic detriment when residents have not established
that they are unable to afford the higher taxes. 387 N.J. Super. at 254. Here,
there was no evidence in the record that Seaview residents could not afford the
higher taxes so as to establish a claim of economic detriment.
As to plaintiffs' argument regarding Egg Harbor's alleged failure to
provide adequate services, the majority of these claims were unsubstant iated or
proven inaccurate. For example, they presented no evidence to support their
claim that Egg Harbor's provision of fire services or snow removal was
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41
inadequate, and Egg Harbor's position regarding closure of the Route 152 bridge
for repairs was within its discretion and supported by the record. As we
understand the debate from the record, the disagreement centered on which
option would cause the least harm—closing the bridge completely for a few
months over the winter when less people resided in Seaview, or closing it one
lane at a time for two-and-a-half years and disrupting the flow of traffic for
residents and visitors for an extended period. Egg Harbor's decision to defer to
Longport because more Longport residents would be affected by the closure was
reasonable given the facts and circumstances.
Plaintiffs' emphasis on Egg Harbor's failure to construct a water pipe
under the bridge to aid in firefighting is also misplaced. While the additional
water pipe would alleviate the need to use water from other fire companies and
fireboats for serious fires, nothing in the record established that the methods
currently in use are inadequate. Plaintiffs' claims regarding Egg Harbor's
inadequate provision of snow removal services were also unsupported.
Judge Mendez found that the only substantiated harm that Seaview
residents suffered as a result of being part of Egg Harbor is the social harm based
on residents' identity, choice of schools, and community activities, a point
challenged by Egg Harbor. But, as the judge also determined, this alone did not
outweigh the significant harm to Egg Harbor residents caused primarily by the
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42
loss of tax revenue. We find no basis to conclude that Judge Mendez's
considerable exercise of his discretion in that evaluation was in any way
improper, as his findings were supported by the record and consistent with
applicable law.
VI.
Finally, plaintiffs contend that Judge Mendez failed to adequately
consider the evidence that showed McCullough, Miller, and Finnerty were
biased against deannexation and that they influenced members of the Planning
Board and Committee, including Paul Hodson and Laura Pfrommer, to similarly
oppose it. They also claim that the judge erred by crediting Chief Davis's
testimony despite evidence of his bias, and that Wiser "had a direct and personal
stake" in denying the petition leading to the application of unsupported legal
standards. They argue further that Judge Mendez erroneously denied their
motion to supplement the record with emails and invoices that showed Miller
continuously provided Wiser and Marcolongo, the Board's attorney, with
information related to the petition.
As discussed, Judge Mendez concluded plaintiffs' bias claim lacked merit
because plaintiffs received a full and fair opportunity to present their case to
Egg Harbor, and Egg Harbor's decision to deny consent was fully supported by
the record and entitled to deference. Further, the judge denied plaintiffs' motion
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43
to supplement the record with the documents showing communication between
Miller, Wiser, and Marcolongo because it found that plaintiffs had cross -
examined Wiser on these documents during the Planning Board hearing. Thus,
the relevant information was already in the record. Because Marcolongo served
as the Board's attorney, and not a witness, plaintiffs did not cross-examine him.
Judge Mendez's evidential ruling was not an abuse of discretion. Hisenaj
v. Kuehner, 194 N.J. 6, 12 (2008). Plaintiffs' cross-examination of Wiser
spanned five days and included extensive questioning on the information Miller
provided Wiser and whether Miller, or anyone else on behalf of Egg Harbor, had
influenced his conclusions. We are satisfied from our independent review of the
extensive record, that relevant information contained in the documents was
already in the record, and the documents plaintiffs wished to include would not
have added any significant information material and consequential to any issue
before us.
As to the bias claims related to McCullough and Finnerty, both recused
themselves from the proceedings, and there is no evidence that they attempted
to influence others in opposing the petition, that either had a personal stake in
the matter, or that the proceedings were tainted by bias. See Piscitelli v. City of
Garfield Zoning Bd. of Adjustment, 237 N.J. 333, 349-51 (2019) (explaining
that public officials must not participate in decisions where they stand to receive
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44
a financial or personal benefit or detriment and that "[t]he overall objective 'of
conflict of interest laws is to ensure that public officials provide disinterested
service to their communities' and to 'promote confidence in the integrity of
governmental operations'" (quoting Thompson v. City of Atlantic City, 190 N.J.
359, 364 (2007))).
With respect to Miller, he had served as Township Administrator for
twenty-five years. He was the "chief administrative officer of the Township,"
and thus, had access to relevant information, to which he testified. While it
would have been better practice for him not to have expressed his opinions on
deannexation, nothing in the record suggested that he was motivated by any
concern other than to save taxpayers the expense of litigation that he believes
was highly unlikely to succeed in light of the facts and applicable standard. Nor
is there any evidence that his personal opposition to deannexation influenced
voting members so as to taint the proceedings. See Szoke v. Zoning Bd. of
Adjustment of Borough of Monmouth Beach, 260 N.J. Super. 341, 343-45 (App.
Div. 1992) (explaining that where a government official who has recused
himself improperly provides opinion testimony, the court must consider whether
that opinion "poisoned the spirit of impartiality" and rendered the proceeding
unfair). Finally, the evidence establishing the tax burden and loss of services
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45
Egg Harbor residents would suffer if deannexation occurred, was significant and
independent of any witness's or Board member's personal opinion.
In sum, we conclude Judge Mendez did not err in finding that Egg Harbor
did not act arbitrarily or unreasonably in refusing consent to deannexation
because the evidence supported a finding that Egg Harbor residents would suffer
significant harm if deannexation were granted.
To the extent we have not addressed any of plaintiffs' remaining
arguments, it is because we have concluded they are of insufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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