BAY BEACH WAY REALIGNMENT COMMITTEE, L.L.C. v. TOWNSHIP COUNCIL OF THE TOWNSHIP OF TOMS RIVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5733-07T15733-07T1

BAY BEACH WAY REALIGNMENT

COMMITTEE, L.L.C., FRANKLIN A.

MICHENFELDER, RICHARD DAVIS,

BARBARA DAVIS, EILEEN VAYDA,

CAROL FORKE, ELIZABETH MAGORY,

MARGARET FINTER, GAIL ZAWACKI,

CHRISTIAN MAGORY, DAVID A. FINTER,

DANIEL RUSSELL, MAUREEN RUSSELL,

JOHN VAYDA, NANCY MICHENFELDER,

CARL DECKERT, MARILYN DECKERT,

FLORENCE KRUEGER, ROSE HENNION,

RALPH HENNION, WAYNE R. EITNER,

GLENN JORGENSEN, ELIZABETH

JORGENSEN, GABRIEL CURTIS,

ELAINE K. DIEGMANN, JAMES F.

SMITH and MARGUERITE SMITH,

Plaintiffs-Respondents,

v.

TOWNSHIP COUNCIL OF THE TOWNSHIP

OF TOMS RIVER and THE TOWNSHIP OF

TOMS RIVER,

Defendants-Appellants.

________________________________________________________________

 

Argued March 10, 2009 - Decided

Before Judges Wefing, Parker and LeWinn.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2198-07.

Thomas J. Trautner, Jr. argued the cause for appellants (Wolff & Samson, attorneys; Mr. Trautner and Lori Grifa, on the brief).

John Paul Doyle argued the cause for respondents (Carluccio, Leone, Dimon, Doyle & Sacks, attorneys; Mr. Doyle, of counsel; Mr. Doyle and Richard S. Kohn, on the brief).

PER CURIAM

Defendant Township Council of the Township of Toms River (Council) appeals from an order entered on July 15, 2008 granting summary judgment in favor of plaintiffs allowing deannexation of Bay Beach Way pursuant to N.J.S.A. 40A:7-12 and ordering the Council to consent to plaintiff's petition for deannexation within thirty days.

Plaintiff Bay Beach Way Realignment Committee (Committee) is comprised of Toms River Township (Toms River) residents who own lots on Bay Beach Way, which is located between Route 35 and Barnegat Bay. Bay Beach Way is a private road consisting of nine acres or approximately .0003% of Toms River's 26,590.25 acres. It is referred to as the Ocean Beach section of Toms River or the Barrier Island.

Plaintiffs originally filed a petition seeking deannexation from Toms River and annexation to the adjacent Borough of Lavallette (Lavallette) in October 2006. The petition was referred to the Toms River Planning Board (Board), which conducted two hearings in December 2006 and January 2007, during which it heard testimony from plaintiffs and the township planner. A public hearing was conducted by the Council on April 10, 2007. On May 8, 2007, the Council adopted a resolution denying its consent to the deannexation.

During the hearings, the evidence demonstrated that the residents of Bay Beach Way could not leave their street without traveling through Lavallette. The residents testified that if the Toms River border were moved one block north, the people living on that block would not have to go through Lavallette to reach the mainland section of Toms River as the residents of Bay Beach Way must do.

Plaintiffs testified that a February 2003 snowstorm gave rise to their petition. The road was not plowed, the residents lost power and were snowed in for three days. Plaintiffs further testified that because their mailing address is Lavallette, they often have difficulty using facilities in Toms River. Moreover, the residents of Bay Beach Way are provided with water, electric and cable service through Lavallette, and those service providers differ from those for the mainland section of Toms River.

Plaintiffs indicated that they were "very involved" in Lavallette community activities because of their proximity to the borough. There was also evidence of the tax consequences for the residents of Bay Beach Way if they were annexed to Lavallette, rather than Toms River. The example given was a house assessed at $380,000 in Toms River and taxed at $12,000 would, by comparison, be assessed at true value of $930,000 in Lavallette with a tax bill of $7,012. Plaintiffs testified, however, that the tax consequences were not the sole reason for seeking deannexation.

The township planner testified that losing the sixty parcels of property on Bay Beach Way would not have a significant impact on the master plan for Toms River. The planner indicated that while the population of Toms River could potentially grow by twenty percent in the next ten years, there was no growth potential for Bay Beach Way because it is fully developed.

After the public hearings, the Council denied plaintiffs' petition, concluding that deannexation would result in a loss of revenue with no savings and that plaintiffs had not demonstrated that deannexation would be in the best interests of Toms River.

Plaintiffs filed a complaint in lieu of prerogative writs in the Law Division seeking to compel the Council to consent to deannexation. Plaintiffs ultimately moved for summary judgment. The Law Division found that the geographic and demographic features of Bay Beach Way were legitimate considerations, that the road was fully developed and that the only access to it was through Lavallette. The court concluded that the record supports a finding that Toms River will not incur any loss of recreational areas, historic sites, open space or other amenities currently available or utilized by other township residents. Toms River would, however, incur a loss of $12 million in ratables, which translates roughly to $300,000 in tax revenues with no reduction in the cost of municipal services. Nevertheless, Bay Beach Way represents only three eighths of one percent of Toms River's tax ratable base.

The trial court determined that the plaintiffs were more closely associated and identified with Lavallette than with Toms River by geographic and demographic factors and were not merely "tax shopping." The court held that Toms River's refusal to consent to the deannexation was unreasonable and ordered the Council to consent to plaintiffs' petition within thirty days.

In this appeal, Toms River argues:

POINT I

N.J.S.A. 40A:7-12.1 IMPOSES A HEAVY BURDEN TO OVERCOME THE DENIAL OF A PETITION FOR DEANNEXATION

I. THE STANDARD OF JUDICIAL REVIEW FOR DENIAL OF A PETITION FOR DEANNEXATION

A. The Evolution of the Standard of Review

B. The Application of N.J.S.A. 40A:7-12.1

C. Plaintiffs Must Establish That a Governing Body's Refusal to Consent to Deannexation Was Arbitrary or Unreasonable

POINT II

THE APPELLATE DIVISION MUST REVERSE THE TRIAL COURT'S DECISION AND AFFIRM THE TOWNSHIP COUNCIL'S DENIAL OF CONSENT FOR DEANNEXATION BECAUSE THE COUNCIL'S DECISION WAS NEITHER ARBITRARY NOR UNREASONABLE.

I. THE TOWNSHIP COUNCIL PROPERLY CONSIDERED THE MERITS OF PLAINTIFFS' PETITION AND ITS DECISION TO DENY THE SAME WAS NOT ARBITRARY OR UNREASONABLE.

A. The Township Council Did Not Abuse Its Discretion By Concluding That Plaintiffs Were Motivated by Tax Shopping.

1. Alleged Social Injuries.

(a) Cable Access.

(b) Impact on Social Life.

(c) Issues with Mailing Addresses.

(d) The Inability to Vote.

(e) The Alleged Inability to Join the Heritage Committee or First Aid Auxiliary Squad.

2. Alleged Economic Injuries.

(a) Alleged Substandard Municipal Services.

(b) Excess Costs Associated With Travel to the Municipal Court/Recycling Center.

(c) The Reduction in Flood Insurance.

(d) Tax Payments.

3. The Trial Court's Rejection of the Township Council's Decision.

B. The Township Council Did Not Abuse Its Discretion by Concluding that Deannexation Would Cause Significant Injury To the Township.

1. The Trial Court's Rejection of the Township Council's Decision.

(a) Significant Injury.

(b) Proportionality.

(c) The Trial Court Improperly Disregarded the Lack of Offset in Municipal Services.

(d) The Trial Court Improperly Disregarded the Impact of the Loss of a Shore Community.

(e) The Trial Court Relied on Factors That Are Not Dispositive of an Absence of Social and Economic Injury to the Township.

II. THE COUNCIL DID NOT DENY DEANNEXATION BASED UPON LEGALLY IRRELEVANT OR FORBIDDEN CONSIDERATIONS.

We have carefully considered the record in light of the Council's arguments and the applicable law. We find that the arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that there is sufficient credible evidence in the record to support the decision of the trial court, R. 2:11-3(e)(1)(A), and we affirm substantially for the reasons set forth in Judge Vincent J. Grasso's extensive and well-reasoned written decision dated July 22, 2008.

Affirmed.

 

The additional named plaintiffs are the Committee members.

Although Toms River provides municipal services such as garbage collection, snow plowing and road maintenance to Bay Beach Way, it maintains that discontinuing those services will not result in any savings to the municipality.

(continued)

(continued)

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A-5733-07T1

July 9, 2009