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Duncan v. Paterson City Council

A-0645-04T3 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; BOARD MEMBERS—Removal of zoning board members requires a two-thirds vote of the entire membership of the municipal council and council members must make individual determinations as to each board member to be removed rather than to act as to an entire group.

Three zoning board members sued their municipal council after it voted to remove them “from their positions.” The Council adopted removal resolutions on a day in which three of its members were absent. The board members therefore argued that the resolutions were invalid “because they were adopted by a simple majority vote rather than by a two-thirds super-majority.” As a result of this challenge, the Council adopted a new resolution “which affirmed the ... earlier resolutions” and “which included the additional votes of” the council members who were absent on the previous date.

The lower court judge “determined that the original vote ... was invalid for lack of a two-thirds majority and that the vote taken” on the later date “was ineffective to remedy the original invalid vote.” It also determined, in addition to other things, that “each of the resolutions lacked findings or conclusions, ... , and that the evidence as to two of the three targets of the removal hearings was largely absent.” The lower court therefore directed that the board members “be reinstated as members of the Zoning Board.” After the council was granted a postponement pending appeal, the board members filed and were granted a vacation of the postponement of “their reinstatement to the Zoning Board.” The Council thereafter appealed, contending, among other things, that the lower court rendered an erroneous decision.

The Appellate Division held that the lower court did not need to address “whether there was sufficient evidence to meet the test for removal for cause” when it held that “the resolutions could not be sustained.” Additionally, the Court held that the first “resolutions, which purported to effect removal of [the board members] by a simple majority vote, were insufficient on their face” since New Jersey law required that “the removal of the members of the Zoning Board by the [municipal] Council can only be accomplished by a two-thirds vote of the entire membership of the [municipal] Council.” It also held that this defect had not been remedied by the new vote since that vote was flawed and therefore invalidated by the fact that the council members “were not presented with” the options of lesser penalties that were available on the original vote date. Additionally, the council members did not “have the option of making individualized determinations among the three targets.”

Further, the Court held that the original decision was flawed because: 1) it did not recite any conclusions or findings; 2) there was a “marked divergence between the original charges and the charges recited in the resolutions;” 3) the “charges on which removal was sought” lacked specificity; and 4) there was no evidence or testimony “directed at two of the three individual” board members. Therefore, it held that council’s decision to remove the three board members was “arbitrary and capricious” and that “the proceedings that led to the charges” and the decision to remove the board members “were so fundamentally unfair that, as a matter of due process, they could not have been remedied on remand.”


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