NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0751-13T4 NEWFIELD FIRE COMPANY NO. 1, APPROVED FOR PUBLICATION Plaintiff-Appellant, January 23, 2015 v. APPELLATE DIVISION THE BOROUGH OF NEWFIELD,

Defendant-Respondent. _______________________________

Submitted September 29, 2014 - Decided January 23, 2015

Before Judges Lihotz, St. John and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-1077-13.

Buonadonna & Benson, P.C., attorneys for appellant (Alan G. Giebner, on the briefs).

Weir & Partners, LLP, attorneys for respondent (Daniel E. Rybeck and John C. Eastlack, Jr., on the brief).

The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

We consider the scope of N.J.S.A. 40A:14-68, which allows a

municipality to exercise "supervision and control" over a

volunteer fire company, designated as its official firefighting

organization. Plaintiff Newfield Fire Company No. 1 (Fire

Company), a nonprofit, volunteer fire organization that has provided firefighting services to defendant the Borough of

Newfield (Borough) for decades, appeals from an August 29, 2013

judgment substantially upholding Ordinance #2013-7, adopted by

the Borough to regulate the Fire Company. Subject to three

exceptions declared unenforceable, Judge Georgia M. Curio

concluded the ordinance was a valid and enforceable exercise of

municipal authority, permitted by N.J.S.A. 40A:14-68. The Fire

Company argues the judge erroneously applied the statute and

maintains the ordinance represents an invalid imposition of

control over the affairs and internal governance of the Fire

Company. Following our consideration of the arguments presented

in light of the record and applicable law, we reject these

assertions and affirm.

In 1908, a volunteer firefighting organization, the

predecessor to the Fire Company, commenced and has continuously

provided firefighting services to the residents of the Borough.

The Fire Company is an independent New Jersey nonprofit

corporation, as verified by a certificate of incorporation and

governing bylaws filed on March 12, 2012.1 Article VI of the

Fire Company's bylaws outlines the duties of officers, including

1 The then Chief of the Fire Company averred the Fire Company was originally incorporated in 1908, and holds the original certificate of incorporation, which was not included in the record. The Borough provided a print out from the Treasury's webpage reflecting the recited record of incorporation.

2 A-0751-13T4 the Chief; Article VII outlines qualifications and duties of

membership; Article VIII authorizes the Fire Company to remove

members; and Article XIII provides for the annual election of

various officers, including the Chief, and the procedure to fill

vacancies.

Historically, the relationship between the Fire Company and

the Borough was harmonious, and the Fire Company and its

predecessor have provided firefighting services "[a]s a matter

of long[-]standing custom and practice," even before the Borough

was chartered in 1924. Relations between the Fire Company and

the Borough grew contentious in 2009 when the Fire Company's

membership elected a new Fire Chief.

There is no written agreement between the Fire Company and

the Borough. For years, the Fire Company has been housed in the

Borough's municipal building, along with other municipal

services. The enmeshed relationship of the Borough and the Fire

Company is aptly illustrated by the fact that a sign in front of

the Borough-owned municipal building was donated to and is owned

by the Fire Company, but electricity to operate the sign is

provided by the Borough. The Borough pays the Fire Company's

liability and worker's compensation insurance, building

maintenance and utilities, and purchased certain Fire Company

equipment such as its fire vehicles. The Fire Company itself

3 A-0751-13T4 generates resources independent from Borough funds through

fundraising and contributions, to pay other on-going expenses.

In December 2010, the Borough adopted Ordinance #2010-11,

entitled "Fire Department." This ordinance recognized the Fire

Company as the sole firefighting organization in the Borough and

provided the Borough "shall require the execution of all

necessary agreements with the [Fire Company] to provide fire-

fighting services," pursuant to N.J.S.A. 40A:14-68;

"[m]embership in the [Fire Company] shall be in accordance with

this chapter and the bylaws of the [Fire Company]"; and

appointment or election of the Fire Chief shall take place

pursuant to the Fire Company bylaws. In accordance with

Ordinance #2010-11, the Borough presented the Fire Company with

a contract for firefighting services, which the Fire Company

rejected.2

The following December, the Borough enacted Ordinance

#2011-15, amending Ordinance #2010-11, authorizing the Borough

to exercise broader control over the Fire Company's general

operations. Specifically, Ordinance #2011-15 required the

Borough to approve the Fire Company bylaws, any bylaw

amendments, its elected officers, and its line officers. The

amended ordinance also detailed the Fire Chief's duties and set

2 This contract is not included in the record.

4 A-0751-13T4 qualifications for and provided for appointment of individuals

seeking membership in the Fire Company. Finally, the ordinance

provided "[f]or cause, [Borough] Council may reprimand, suspend,

or remove from office the Fire Chief, or any officer or officers

of the [Fire Company]."

Ordinance #2011-15 was amended in July 2013, with the

enactment of Ordinance #2013-7. Ordinance #2013-7 is the

subject of this appeal. The significant addition in Ordinance

#2013-7 requires all Fire Company line officers, which include

the Chief, Deputy Chief, Assistant Chief, Captain, Lieutenants,

and Fire Police Captain, "shall be appointed by the Borough['s]

Governing Body[,] as provided by law."3

The Fire Company filed this complaint in lieu of

prerogative writs, seeking to invalidate Ordinance #2013-7 as

ultra vires. The Fire Company asserted the Borough abused its

discretionary authority in adopting Ordinance #2013-7, and the

adoption was "arbitrary, capricious and unreasonable," making

the ordinance "wrongful" and "unenforceable." The trial court

temporarily restrained the Borough from enforcing the provisions

of Ordinance #2013-7.

3 The record contains several references to the Borough's apparent desire to remove the Fire Company's Chief and suggests the Borough filed a disciplinary complaint against him.

5 A-0751-13T4 Following oral argument, Judge Curio considered the legal

issue presented. Reviewing the provisions of N.J.S.A. 40A:14-

68, she rejected the Fire Company's contention that an external

contract defining the relationship was mandated, thereby making

the Borough's mere adoption of Ordinance #2013-7 ineffective to

exercise the statutorily permitted supervision and control over

the Fire Company. Rather, she concluded Ordinance #2013-7

sufficiently established the contract between the Borough and

Fire Company and was "an appropriate exercise of authority by

the Borough . . . pursuant to N.J.S.A. 40A:14-68." Next, the

judge upheld Ordinance #2013-07 as enforceable, after excising

three specific provisions: the portion of § 25.2 allowing the

Borough to appoint the Fire Chief; the portion of § 25.3

requiring the Fire Company submit its bylaws, and presumably any

amendments, to the Borough Council for approval; and the portion

of § 25.5 providing the Borough retain ownership and control

over the sign erected in front of the municipal building. Judge

Curio noted the Borough can require approval of other Fire

Company officers and mandate the Fire Company transmit a copy of

its bylaws to the Borough Council.

On appeal, the Fire Company agrees N.J.S.A. 40A:14-68 is

the source of authority allowing the Borough's involvement in

its operation. However, the Fire Company challenges the trial

6 A-0751-13T4 judge's determination that Ordinance #2013-7 complies with the

scope of the permitted statutory authority.

"Municipal ordinances, like statutes, carry a presumption

of validity." Hutton Park Gardens v. Town Council of W. Orange,

(1975). "[A] law concerning municipal

corporations formed for local government . . . shall be

liberally construed in their favor." N.J. Const. art. IV, § 7,

¶ 11. Accordingly, a party challenging a municipal ordinance

has a heavy burden. The presumption of validity "'may be

overcome only by a clear showing that the local ordinance is

arbitrary or unreasonable.'" Quick Chek Food Stores v.

Springfield,

(1980) (quoting Hudson Circle

Servicenter, Inc. v. Kearny,

(1976)).

We start our review by examining the scope of N.J.S.A.

40A:14-68, understanding questions of statutory interpretation

are purely legal. In re Liquidation of Integrity Ins. Co.,

(2007). In our de novo review of legal issues, we

need not defer to the trial court's conclusions. In re Petition

for Referendum on Trenton Ordinance 09-02,

(2010) (citing Manalapan Realty v. Twp. Comm. of Manalapan,

(1995)).

7 A-0751-13T4 "'Our task in statutory interpretation is to determine and

effectuate the Legislature's intent.'"

(quoting Bosland

v. Warnock Dodge Inc.,

(2009)).

"In the construction of the laws and statutes of this state, both civil and criminal, words and phrases shall be read and construed with their context, and shall, unless inconsistent with the manifest intent of the legislature or unless another or different meaning is expressly indicated, be given their generally accepted meaning, according to the approved usage of the language."

[State v. Hupka,

(2010) (quoting N.J.S.A. 1:1-1).]

"We consider the statute at the center of this case in

accordance with these principles." C.A. v. Bentolila,

(2014).

Many municipalities cannot support a full-time municipal

fire force and instead rely upon volunteers to provide this

essential public service. The volunteer fire companies are "not

direct units of local government." Paff v. N.J. State Firemen's

Ass'n,

(App. Div. 2013) (citing

Schwartz v. Stockton,

(1960)). "While such

organizations are independent, incorporated as associations not

for pecuniary profit, . . . they may, and generally do, have

definite relationships with municipal governing bodies, . . .

thereby giving them a kind of semi-official status." Schwartz,

8 A-0751-13T4 supra,

(citation omitted). "'[T]he relationship

between a volunteer fireman and the municipality is not that of

master and servant in the true sense.'" Maggio v. Migliaccio,

(App. Div.) (quoting Vogt v. Borough

of Belmar,

(1954)), certif. denied,

(1993). Nevertheless, volunteer fire departments have been

recognized as quasi-public in nature. Sprint Spectrum, L.P. v.

Borough of Upper Saddle River Zoning Bd. of Adjustment,

(App. Div.), certif. denied,

(2002).

The Legislature addressed the nature of municipal control

of volunteer fire companies in N.J.S.A. 40A:14-68(a), originally

effective on July 1, 1979:

In any municipality not having a paid or part-paid fire department and force, the governing body, by ordinance, may contract with a volunteer fire company or companies in such municipality, for purposes of extinguishing fires, upon such terms and conditions as shall be deemed proper. The members of any such company shall be under the supervision and control of said municipality and in performing fire duty shall be deemed to be exercising a governmental function; however, the appointment or election of the chief of the volunteer fire company shall remain the prerogative of the membership of the fire company as set forth in the company's certificate of incorporation or bylaws.

9 A-0751-13T4 The plain language of this statute reflects the

Legislature's intent to assure governmental supervision and

control of volunteer fire companies to the extent they are

charged with performing public functions funded by public

taxpayer resources. See McGovern v. Rutgers,

(2012) (holding "'we look first to the plain language of the

statute,'" giving the words their ordinary meaning and deriving

intent from the words the Legislature has chosen (quoting

)).

The Fire Company insists the Borough's use of an ordinance

ignored statute's requirement of providing a contract with the

Fire Company to define the scope of governmental supervision and

control. We reject this argument because the plain language of

the statute provides the municipality's "governing body, by

ordinance, may contract with a volunteer fire company . . . ."

N.J.S.A. 40A:14-68(a) (emphasis added). We conclude these words

unambiguously permit a municipality to use the mechanism of an

ordinance as the contractual basis to set forth provisions

assuring municipal supervision and control of members of the

volunteer fire company it designates as the official entity to

perform the public function of extinguishing fires.

Such a reading is consistent with prior interpretations of

both the statute and a municipality's relationship with its

10 A-0751-13T4 volunteer fire company. In Migliaccio, this court found the

adoption of an ordinance satisfied the statute, stating: "The

record reveals that the Borough of West Long Branch adopted the

necessary ordinance referred to in N.J.S.A. 40A:14-68 . . . ."

. Also, in Paff, we

considered an ordinance defining the relationship when deciding

a different issue. There, we concluded "[m]embers of volunteer

fire companies serve 'under the supervision and control of [a]

municipality and in performing fire duty shall be deemed to be

exercising a governmental function[.]'"

(alterations in original) (quoting N.J.S.A.

40A:14-68). See also Guida v. Emerson,

, 211-

12 (Dep't Labor 1939) (noting a municipality's recognition of a

volunteer fire company by express agreement is accomplished by

"the passage of an ordinance creating a department and stating

the manner of control").

We also find unpersuasive the Fire Company's argument

suggesting the Legislature reserved use of an ordinance to

define the regulation and control of paid fire departments,

pursuant to N.J.S.A. 40A:14-7, and chose to specify a contract

to control volunteer fire companies pursuant to N.J.S.A. 40A:14-

68. As Judge Curio aptly observed, use of a contract is

superfluous when discussing a municipality's authority to form a

11 A-0751-13T4 paid fire department, as discussed in N.J.S.A. 40A:14-7. On the

other hand, when addressing a municipality's relationship with a

volunteer fire force it seeks to perform public firefighting

functions, a municipal ordinance merely creates the conditions

under which that volunteer fire company may act as the

designated fire company of the municipality.

Turning to the attack on the scope of Ordinance #2013-7,

the Fire Company maintains the Borough lacks authority to

regulate the Fire Company, its members, or officers because the

Fire Company is a private nonprofit corporation, separate and

distinct from the Borough. The Fire Company relies on N.J.S.A.

15A:1-1 to 16-2, which are statutory provisions vesting rights

in nonprofit corporations, such as the right to be governed by

and make its own bylaws, N.J.S.A. 15A:2-9 to -11; the right to

acquire real and personal property, N.J.S.A. 15A:3-1(a)(4); and

the right to elect or appoint officers and define their duties,

N.J.S.A. 15A:3-1(a)(10). We disagree with this assertion.

A well-recognized rule of statutory construction applies

when one statute appears in conflict with another. Quite

simply, specific statutory provisions govern general ones.

State v. Robinson,

(2014); Tiffany Manor

Assocs. v. Newark City,

(Tax 1999). The

broad, general nonprofit corporation statute yields to the

12 A-0751-13T4 specific legislative direction governing a municipality's

supervision and control of a designated volunteer fire company.

We further conclude the Fire Company is incorrect in

asserting its activities and management are independent of

municipal oversight and control. N.J.S.A. 40A:14-68(a)

pointedly directs volunteer fire companies, whose members accept

the role of performing the "governmental function" of "fire

duty," serve "under the supervision and control of [the]

municipality." Since volunteer firefighters perform a public

service, the need for municipal supervision and control of the

Fire Company is underscored, and the volunteer fire company is

legally viewed as a state actor. "'[V]irtually every statutory

reference concerning volunteer companies refers to fire

protection as a governmental function.'" Pallister v. Spotswood

First Aid Squad,

, 281 n.2 (App. Div. 2002)

(alteration in original) (quoting D'Eustachio v. City of

Beverly,

(Law Div. 1979)). See also

Eggert v. Tuckerton Vol. Fire Co. No. 1,

(D.N.J. 1996) (holding a volunteer fire company is a state actor

for purposes of 42 U.S.C.A. 1983);

(holding volunteer fire companies are public entities for

purposes of tort liability); State v. Quezada,

A-0751-13T4 277, 283-84 (App. Div. 2008) (holding a volunteer firefighter is

a public servant under N.J.S.A. 2C:27-1(g)).

In return, designated volunteer firefighters are afforded

worker's compensation insurance as de facto municipal employees,

see N.J.S.A. 34:15-43;

, and provided municipal contributions from funds raised

through local tax assessments for equipment and a substantial

portion of related firefighting expenses. N.J.S.A. 40A:14-33;

N.J.S.A. 40A:14-34. A municipality may compensate volunteer

firefighters for losses sustained in performing fire duties,

N.J.S.A. 40A:14-36, and allocate space in municipal realty for

their use. See N.J.S.A. 40:48-2 (defining a municipality's

general powers to exercise authority for public welfare and

safety).

The municipal management of volunteer fire companies as

defined in N.J.S.A. 40A:14-68(a) is limited to "the authority to

control the general affairs of a volunteer fire department," and

a municipality "cannot dictate the day-to-day operations of the

department."

(citing 63

C.J.S. Municipal Corporations § 542 (1999)). This distinction

is illuminated by the independent control retained by a fire

company in "the appointment or election" of its Chief, "as set

14 A-0751-13T4 forth in the company's certificate of incorporation or bylaws."

N.J.S.A. 40A:14-68(a).

Following our review, we find no flaw in Judge Curio's

analysis, concluding Ordinance #2013-7, as excised, stays within

the lines drawn by N.J.S.A. 40A:14-68(a). As the judge noted,

the Borough may not retain the right to approve the elected Fire

Chief or the Fire Company's bylaws, including any amendments.4

With these modifications, we conclude Ordinance #2013-7 does not

intrude into the day-to-day operations of the Fire Company,

defined by its bylaws. See N.J.S.A. 15A:3-1(a)(11) (a nonprofit

corporation's bylaws govern "the administration and regulation

of the affairs of the corporation"). For example, Ordinance

#2013-7 makes no attempt to invade the Fire Company's province

to assign personnel; define essential tasks; require attendance;

hold elections; abide by a membership code of conduct; develop

tactical decision-making for fire protection, prevention and

safety, particularly when fighting a fire; or regulate

fundraising efforts.

In our view, Judge Curio's decision does nothing more than

consider the validity of the ordinance, which we agree, once

excised, presents a valid enforceable contract to the Fire

4 The judge's excise of the provision suggesting the Borough retains ownership of the Fire Company's sign is not specifically contested.

15 A-0751-13T4 Company. If the Fire Company accepts the terms in order to

continue as the designated municipal fire force, it is entitled

to benefits provided by law, as we have outlined above. We

emphasize, the Fire Company correctly asserts a contract

requires a meeting of the minds and mutual assent. See, e.g.,

Morton v. 4 Orchard Land Trust,

(2004);

Atalese v. U.S. Legal Servs. Grp., L.P.,

(2014). Possibly the Fire Company's prior demonstrated

dissatisfaction with the ordinance provisions may lead to a

decision to end its long-standing role as the entity providing

firefighting services for the Borough. Prudence suggests any

terms formulated in an ordinance governing the Fire Company

would be mutually discussed, if not formulated by assent before

passage. Still, we are aware of nothing that precludes the

Borough from adopting an ordinance defining the conditions it

requires of any volunteer fire company seeking to act as the

Borough's designated fire company.

Here, the Fire Company must accept these terms if it seeks

to continue in its role as the designated municipal entity.

Nevertheless, nothing prevents the Fire Company members from

declining to voluntarily perform firefighting services under

terms mandated by a valid ordinance, such as Ordinance #2013-7.

If it chooses to do so, absent further negotiation and agreement

16 A-0751-13T4 with the Borough, its municipal firefighting status ceases, and

the Borough has authority to assume possession and control of

its real and personal property and to seek a replacement entity

to perform the necessary fire functions. Raritan Engine Co. No.

2 v. Edison Twp.,

(App. Div. 1982).

Affirmed.

17 A-0751-13T4