TRENTON, NJ — An appeal court has upheld a decision that the borough acted improperly when drafting an interpretive statement to a public question that would be narrowly approved by voters to rebuild Taylor Pavilion after Superstorm Sandy.
As a result of the affirmation by the three-judge panel of Superior Court Judge Katie Gummer’s September 2016 decision, Belmar must now pay the plaintiffs' attorney some $47,000 in legal fees and other costs, according to the court’s decision.
Led by Judge Scott Moynihan, the appellate panel agreed with Gummer that “the interpretive statement was invalid because it was misleading and contained extraneous language; and that defendants' actions deprived (the) plaintiffs of a substantive right protected by the (New Jersey Civil Rights Act).”
In the summer of 2015, the borough started the process of placing a referendum on the November 2015 ballot, asking voted to approve an appropriation of $4.1 million for the rebuilding of the pavilion, including the issuance of nearly $3.9 million in bonds. A group of residents opposing the bond ordinance petitioned to have the question placed on the ballot for a decision by residents.
However, the referendum was submitted without an interpretive statement and when it was drafted and resubmitted, the statement had not been officially approved through an official vote by Mayor Matthew Doherty and the borough council.
In September 2015, a lawsuit was filed against the borough by Belmar residents Joy DeSanctis, Michael Seebeck, Patricia Corea, Noreen Dean and James Bean, represented by attorney and former Belmar Mayor Kenneth Pringle. They sought a judgment declaring the interpretive statement invalid because it was not voted on by the mayor and council, “thereby depriving (the) plaintiffs and the public the opportunity to comment on and object to its content which contained inaccurate, misleading and extraneous information, presenting another ground for invalidation.”
Regarding the wording of the statement, which alluded that the funding would be secured through the Federal Emergency Management Agency, Gummer’s ruling on its invalidity was also upheld by the appeals court, which also pointed out it was the fourth attempt by the borough to finance the rebuilding project. In that last referendum, residents approve it by a 17-vote margin.
“Most of the brief interpretive statement was designed to sway — not inform — voters in defendants' attempt to finance construction of the pavilion. This was their fourth attempt to garner public support for the project. Despite knowing that FEMA funds were not secured — albeit perhaps obtainable — Borough Administrator (Colleen Connolly's) wording of the interpretive statement conveyed to voters a misleading sense that funding was readily available. And the intent of the last sentence, which read “This ordinance was unanimously approved by Belmar Mayor and Council on July 7, 2015,” was “a blatant attempt to influence voters by presenting a unified front, in clear contravention of the interpretive statement statute's spirit and letter. Lest we forget, defendants submitted the interpretive statement without a public vote. These actions derogated what our Supreme Court held to be a substantive right protected by the (civil rights act).”
The appeals court continued: “Judge Gummer credited the borough administrator's testimony that the last sentence was added to the interpretive statement 'at the suggestion of certain members of the council, who thought it was a matter of importance that the public know that the vote on the referendum was not contentious or on the ordinance was not contentious.' The judge found that "(the) only purpose ... for that last statement was ... a means of persuasion to indicate to the voters that the mayor and the entire council was unanimous. It does not inform them as to the substance of the issue put before them.”
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