Ryan v. Mayor & Council Bor. of Demarest
Ryan v. Mayor & Council Bor. of Demarest
Opinion of the Court
The opinion of the court was delivered by
Beechwood Earms is a development of what are described in the record as thirty “beautiful homes, large estates,” bisected by the borderline between the Borough of Demarest and the Borough of Alpine in Bergen County. Sixteen of the homes are consequently in Demarest and fourteen are in Alpine.
The plaintiffs here are fourteen of the sixteen Beechwood Earms homeowners whose properties lie in Demarest. On January 4, 1971 they filed a petition with the Mayor and Council of Demarest, pursuant to N. J. 8. A. 40:43-26, requesting consent to deannexation of that part of the development which is located in that Borough so that “said lands * * *
As indicated Demarest and Alpine are adjacent boroughs-. Demarest is about 2 square miles and had a population in 1970 of 6,262 ;
In 1971 Demarest’s total tax assessment was about $45.5 million, while Alpine’s was about $27.6 million. The tax rate that year was $4.70 per $100 of valuation in Demarest and $2.67 per $100 in Alpine.
Both Demarest and Alpine maintain grammar schools. Demarest high school students attend Northern Yalley Regional High School, located in Demarest. Alpine high school students are forwarded to Tenafly' High Schooh
The Demarest section of Beechwood Farms lies on the eastern boundary of the Borough. It is separated from the rest of Demarest by Aldecress Country Club and Holy Angels Academy. In order to get to the business section of Demarest or other residential sections of the Borough, one must cross over into Alpine, pass briefly through the .Borough of Cress-kill and return to Demarest. The development lies about two miles from the center of the Borough.
It is undisputed that the Beechwood Farms homes located in Demarest are much more expensive than the average home elsewhere in the Borough. In 1971 the development accounted for only 16 homes out of approximately 1,547 homes in Demarest or 1.03% of the total. Nevertheless, it provided $959,000 in assessed valuation in the Borough or 2.11% of the total valuation, including commercial property. The Beechwood Farms homes provided $45,100 to Demarest in property taxes. It is also undisputed that the property taxes for the same homes would be significantly lower if they were located in Alpine.
At trial, the technical sufficiency of the petition and compliance with the statute were conceded by the defendant Borough. The only issue was whether the refusal of Demarest to consent to deannexation was arbitrary and unreasonable under West Point Island Civic Association v. Township Committee of Dover Township, supra. Plaintiffs rested their main case without presenting any witnesses, relying on the petition to the Council, the complaint and the pretrial order which narrowed the issues in the ease. The denial of Demarest’s motion for judgment at this juncture was proper, as will appear in the discussion below.
Mayor Ringelstein stated that in reaching its decision the Council considered both the loss in revenue in the upcoming fiscal year and the total loss over the next ten to twenty years and concluded that deannexation would result in an economic hardship. He asserted further that the development figured prominently in the planning of the Borough. The Aldecress Country Club was zoned for residential housing. If and when that land is developed, Demarest plans to use the Beechwood Farms roads as the best thoroughfares out to Hillside Avenue, a county road.
According to the Mayor, residents of Beechwood Farms had been active in Demarest social and community activities such as Little League and had participated in municipal and political activities. The movement for deannexation began only when it became apparent that Demarest would be required to have a bond issue to finance a sewer system which the State Board of Health has ordered the Borough to install. The borough engineer testified the sewer system was undergoing installation at the time of trial.
Two of the plaintiffs testified in rebuttal. Emile R. Capita said that the Demarest schools which his children
William M. Buch testified that he lived in Alpine from 1949 to 1962 when he moved to Beechwood Parms. At that time he was unable to purchase an Alpine home and bought one in Demarest. He favored deannexation so that he could reside in the town where he had previously lived.
It was in this posture of the proofs that the trial judge concluded that the effect of deannexation would be “insignificant” and “not of any injury * * * to the municipality.” Accordingly, he gave judgment to plaintiffs and ordered Demarest to “adopt a resolution in the form necessary to indicate its consent to the Petition for Annexation * * *.” The Appellate Division’s affirmance was predicated on agreement with the finding that deannexation would not “specifically injure the municipality or its social and economic well-being.”
The trial judge demonstrated a full understanding of all facets of the holding in the West Point Island case, but we are satisfied that he and the Appellate Division misapplied to this case the law set forth therein. This Court there undertook to interpret N. J. S. A. 40:43-26, reading in full as follows:
Land being in one municipality may be annexed to another municipality to which said land is contiguous. To effect such annexation, a petition in writing shall be presented to the governing body of the municipality to which such annexation is sought to be made, specifically setting forth the boundaries of such land, signed by at*601 least sixty per cent of the legal voters residing thereon. In case no voter resides thereon, such petition may be signed by the person or persons owning at least sixty per cent of said land as shown by the assessor’s duplicate for the preceding year. Such petition shall be duly verified by one of the signers thereof, and shall have attached thereto the oath of an assessor of the municipality in which said land is located, or of some other person having access to such accessor’s books, setting forth the assessed value of the real estate contained within such boundaries for the preceding year, and the amount of real estate assessed to any of the persons whose names are signed to such petition. Such petition shall also have attached thereto a certified copy of a resolution of the governing body of the municipality in xohich said land is located, consenting to said annexation, which resolution said governing body is hereby authorized and empowered to adopt.
The governing body of the municipality to which land is sought to be annexed may, in its discretion, by ordinance adopted by a two-thirds vote annex the land specifically described in said petition to such municipality; and in case such municipality is divided into wards, shall also in such ordinance designate the ward or wards of which said land shall become a part, but in all cases the annexed lands shall become part of the ward or wards to which it is contiguous. The boundaries of such municipality shall not be extended so as to include a portion of any county other than that in which such municipality is located, (emphasis supplied)
West Point Island held that the municipality's consent to deannexation is neither a purely ministerial act nor a purely political judgment reviewable only upon a showing of fraudulent abuse of discretion. Rather, the word “con- • sent” implies a voluntary act, not a statutory compulsion, and the municipality has discretion to withhold its consent to the deannexation. However, the discretionary authority is subject to close judicial scrutiny to prevent arbitrary and unreasonable action, West Point Island Civic Association v. Township Committee of Dover Township, supra, 54 N. J. at 345-346, and if the municipality in which the land is located is to object to deannexation, it “must come forward” with “proof of specific injury.” Id. at 348. In this connection we recognize that West Point Island speaks at one point of injury to. the “social and economic” well-being of the municipality, West Point Island Civic Association v. Township Committee of Dover Township, supra, 54 N. J. at
In West Point Island the defendant municipality failed to meet this burden of production and so the Court never reached the question of burden of proof. We think it clearly, implicit in that opinion that the ultimate burden of proving that the municipality acted in an arbitrary or unreasonable manner remains with the plaintiffs, the side challenging the invalidity of the withholding of consent. Lest there be any doubt on that score, we specifically declare that such is the burden of plaintiffs. Indeed, it is precisely because of their failure to have sustained that burden in the case sub judice that these plaintiffs must fail in their effort to compel Demarest’s consent to deannexation.
Comparison with West Point Island’s facts, where consent to deannexation was ordered, is instructive. There the island, a part of Dover Township, was located across Barnegat Bay, east of the mainland of the Township, and connected by a short bridge to Lavallette, the municipality to which the residents sought to be annexed. The island was “isolated from the schools as well as the governmental, business and shopping areas of Dover Township.” The residents looked to Lavallette “as the focus of community interest and activity.” Under these circumstances it was held that Dover Township would not suffer any social injury as a result of deannexation. Likewise, the Court found no economic injury to the Township from dcannexation; the loss in revenue was offset by an equivalent reduction in the cost of municipal services.
It is also acknowledged that Beeehwood Farms constitutes an affluent community whose presence adds prestige to the Borough of Demarest. This is not an inconsiderable factor in determining whether social detriment would result from deannexation, nor can it be lightly dismissed as mere “snob appeal” and thus' unworthy of consideration.
The evidence also makes it clear that deannexation would indeed cause economic hardship to Demarest. While the testimony does not lend itself to a precise computation of the loss of revenue above the cost of services for the development other than has been set forth ante, it is certain that the owners of these exclusive and expensive homes contributed substantially more to the Borough than they cost in services. (What is clearly inferable from the record, plaintiff Capita to the contrary notwithstanding, is that plaintiffs sought deannexation primarily because it would save them considerable money, the property tax rate in Alpine being significantly lower than in Demarest, where they feared an additional burden because of sewer installation.) The municipal fathers quite properly considered the amount of both the long term and the short term loss of revenue in determining that the proposed deannexation would mean economic injury to the Borough.
While this disposes of the matter in controversy, we think it well to add a few words with the thought that municipal attorneys, governing bodies, others interested in municipal law and our lower courts may achieve a greater sense of certainty as to how to proceed in a case where, as here, deannexation is contested and consent withheld.
First, the statute quoted ante is understandably silent as to what the content should be of any resolution expressing denial of consent. Demarest’s resolution in this case, while not fatally defective, assuredly is not particularly informative as to the reasons for which the governing body concluded deannexation would be “contrary to the best interest of the Borough.” It recites “findings of fact,” many of which do not bear at all on the issues of social or economic detriment; rather, they set forth the many benefits flowing to Beechwood Farms’ residents and are suggestive of their poor judgment in wanting to leave Demarest. It would be more appropriate if the recitations in such a resolution were confined to those facts supportive of the governing body’s conclusion that social or economic detriment will result from deannexation.
Second, when the case reaches the trial stage, it is sufficient in the first instance for plaintiffs simply to introduce into evidence the petition by which they seek deannexation, together with evidence of the municipality’s denial
Third, we have considered the problem of what kind of evidence is relevant to the issue of “social detriment,” at the same time acknowledging that “economic injury” is relatively easy to recognize and quantify. In undertaking briefly to address this problem we would stress the point that whatever factors are alluded to are in no way intended to be all-inclusive, for in the final analysis the governing body and the trial judge will have to bring to bear their own knowledge, experience and perceptions in determining what, in the context of deannexation, would inflict social injury upon the well-being of a community. With that cautionary note in mind we would suggest 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. We repeat that in listing them, we are recognizing only some of the appropriate considerations.
While the first of the quoted propositions may find some support in the cited cases, the second is afforded none. Nor do we perceive that the statute in question encourages the adjustment of municipal boundaries “from time to time” dependent upon the changing “community of interests” of the residents. We find in the statute an intention on the part of the Legislature 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. It is exactly for this reason that there must be secured the governing body’s consent, which may be withheld in the reasonable exercise of its discretion. That safeguard stands in support of the intended policy of the legislature.
The order compelling the defendant council to adopt a resolution expressing consent to plaintiffs’ petition is hereby vacated, and the judgment below is:
Reversed.
The record nowhere reveals the intention of the governing body of Alpine with respect to annexation should Demarest give its consent. At oral argument counsel for the parties were unable to supply that information.
The Mayor of Demarest testified a revised census, neither “approved” nor “certified,” put the number at about 5300 people.
Concurring in Part
(concurring and dissenting in part). I concur in the majority’s conclusion, that those seeking to withdraw from a township must bear the burden of proof as to the reasonableness vel non of the parent municipality’s denial of consent to deannexation.
Further, the majority overstates its claim that the fact of specific economic or social harm will suffice to bar deannexation; as above, all deannexation will produce that harm, and no deannexation could ever succeed were such injury the gauge of the propriety of the township’s refusal of consent.
I would affirm the principle stated in West Point Island, that the reasonableness of municipal action is at issue in these cases. I do not believe that the plaintiffs should be confined, as the majority suggests, to an attempt to negative proof of economic and social injury, a task in which they can never succeed. Instead, the plaintiffs should prove that the extent of potential harm to the parent municipality is insignificant, or alternatively, that actual harm to the township is so far outweighed by the beneficent results to the secessionist sector, that refusal of consent was palpably unreasonable.
This burden on the plaintiffs is a heavy one. In the case sub judice, the economic injury to the parent township was obvious, and social injixry was not a frivolous claim. Those seeking deannexation could not negative the proofs of actual injury; nor could they offer any compelling countervailing consideration, such as the alleviation of any existing oppressive condition resulting from their location in Demarest;
Accordingly, I concur in the judgment of reversal.
Passman, J., concurs in result.
For reversal — Acting Chief Justice Jacobs, Justices Hall, Sullivan, Pashman and Clifford and Judges Con-ford and Collestee—7.
For affirmance—None.
Reference
- Full Case Name
- Frank Ryan and Anna M. Ryan, His Wife; Robert A. Escher and Jane W. Escher, His Wife; Vincent Bogert and Marie C. Bogert, His Wife; John R. Frercks and Virginia Frercks, His Wife; Emile R. Capita; William M. Buch and Frances v. Buch, His Wife; Edward F. Prodigo and Dorothy Prodigo, His Wife; Carl M. Carlson and Mildred M. Carlson, His Wife; Constance T. Cory; Grant Dellabough and Dorothy Dellabough, His Wife; And William Nixon and Frances Nixon, His Wife, Plaintiffs-Respondents, v. Mayor and Council of the Borough of Demarest, in the County of Bergen, State of New Jersey, Defendant-Appellant
- Cited By
- 16 cases
- Status
- Published