March 8, 2012
By LYNDSAY CAYETANA BOUCHAL
BYRAM — The petition to repeal the governing body's decision to increase the limit on municipal appropriations and establish a cap bank was dubbed invalid by the township attorney Tuesday.
In a seven-page letter of opinion presented to the Township Council, municipal attorney Thomas Collins concluded that vote was not eligible for referendum.
The ordinance to increase the budget appropriations cap from 2.5 percent to 3.5 percent and to establish a cap bank was passed in a 3-2 vote Feb. 7. A committee of five petitioners then swiftly delivered a petition of 420 signatures to repeal the decision by referendum. To be considered, the filed petition requires at least 253 signatures or 15 percent of the total votes cast in the last municipal election.
"It is our opinion that the special election should not be scheduled because the subject matter of the ordinance dictates that it is not subject to repeal by the referendum process, and a referendum is not authorized by state statutes for this type of ordinance," Collins said.
According to state statute listed at the meeting, Collins said the petition and referendum process only applies to ordinances that do not take effect until 20 days after the time of the final passage. Collins said the budget-related ordinance in question requires immediate implication upon adoption and therefore cannot be repealed by referendum.
"I think (the attorney's) out of sequence in inserting himself in this process," petitioner Harvey Roseff said.
Collins then cited case law.
He summarized: "The Legislature has allocated authority to initiate legislation in the areas of municipal budget, debt and salary to the municipality's governing body, while allowing only limited voter review by referendum or initiative."
Collins' letter of opinion further stated: "The referendum proposed by the petitioners would, if held and sustained, result in a restraint on the exercise of budgetary discretion by a future governing body or bodies. ... Therefore, the petition for a referendum ... is not authorized by law and is not effective. The clerk should not schedule a special election."
Roseff said the cases cited by Collins were "thoroughly unlike the present situation," "editorialized," and "out of context."
Roseff said the committee of petitioners is anticipating petition certification by March 18, 20 days after it was submitted. The council specified that the verification process will still be completed.
"Should the mayor and council wish to challenge the petition after the town clerk has certified our petition, we look forward to presenting our arguments to the same judge who will consider Byram's argument as well," Roseff said.
