TOWNSHIP OF UPPER TOWNSHIP OF UPPER
TOWNSHIP HALL
2100 TUCKAHOE ROAD
PETERSBURG, NEW JERSEY
CAPE MAY COUNTY
SPECIAL MEETING OF THE TOWNSHIP COMMITTEE –7:00 P.M.
This Special Meeting was called pursuant to the provisions of the Open Public Meeting Law. Notices of this meeting were sent to The Press of Atlantic City and the Ocean City Sentinel Ledger on September 26, 2007. In addition, copies of notices were posted on the bulletin board in the Municipal Building and filed in the office of the Municipal Clerk on aforementioned date.
CALL TO ORDER
ROLL CALL
Barbara Camp Present
Frank E. Conrad Present
Curtis Corson Present
John “Jay” Newman Present (arrived at 7:05 P.M.)
Richard Palombo Present
Also present were Municipal Clerk Wanda Gaglione and Municipal Attorney Daniel Young.
UNFINISHED BUSINESS:
1. From Mary D’Arcy Bittner, request for deannexation of Strathmere.
Mayor Palombo opened the meeting. Municipal Attorney Daniel Young recommended that the Committee go into an executive session because of confidential legal issues on this matter. He wants to insure the Township Committee is aware of potential litigation issues, and then return back into open session to deal with the deannexation request. At 7:10 P.M., motion was made by Curtis Corson, second by Barbara Camp to go into closed session. During roll call vote all five voted in the affirmative.
At 7:20 P.M. the regular meeting reconvened. Motion was made by Richard Palombo, second by Jay Newman to go back into the open session of the meeting. During roll call vote all five voted in the affirmative.
Mr. Young explained the statute requirements for deannexation under N.J.S.A. 40A:7-12 as follows:
-the petition is to be signed by 60% of the voters residing there,
-it is to be duly verified by one of the signers,
-it must include an oath from the Municipal Assessor or others having access to the Assessor’s books setting forth the value of the real estate within the boundaries of the real estate of the preceding year assessed to the signers.
-The petition should also have attached to it a certified resolution, in this case from Upper Township, consenting to the annexation.
Mr. Young explained that the statue goes on to say that the Township Committee, within 14 days of receipt of the petition, refers it to the Planning Board for a report on the impact of the deannexation on the Township.
He then summarized the events leading up to this date as follows:
--On Sept. 18, 2007 the Upper Township Clerk received from attorney Mary D’Arcy Bittner on behalf of the Citizens for Strathmere and Whale Beach, correspondence and documents requesting the deannexation and were described as follows:
All of the correspondence referred to “Strathmere and Whale Beach” however the individual forms signed by the voters referred only to “Strathmere”. There were 115 individually signed forms, each form was basically the same except for dates. Some were undated. Dates ranged 4/21/2007 to 8/3/2007 with most dates in May. None of the forms were notarized or witnessed, and the submission contained no verification. The form also stated that the signer suggests “the removal of Strathmere from the Township for the purpose of being annexed to Sea Isle City”, and also stated it was their “intention to sign the formal petition to be presented to the governing body of Sea Isle City”.
Mr. Young stated that the signed form was an intention and not the actual petition. No form mentioned Whale Beach or any description of the property setting forth the boundary of the annexation request.
Mr. Young reported that after his initial review of the submission he contacted Ms. Bittner and explained his concerns that the document did not meet statutory requirement. He stated Ms. Bittner advised him that it was her opinion that the formal petition was not necessary at this time. Mr. Young suggested that she correct the deficiencies; she responded that it would be too complicated and too expensive.
--On Sept. 23, 2007 additional correspondence was received from Ms. Bittner in that she again stated that the Township is not presented with the formal petition, however she did indicate that a map would be provided prior to the Township Committee meeting to further amplify the request and to fix the land to be annexed.
--On Sept. 26, 2007, she informed Mr. Young that she would submit additional information in the next day or so and said that if there is any confusion by the governing body about what property is referred to for deannexation, that this issue can be clarified by the Planning Board.
--On Sept. 28, 2007, three additional pieces of correspondence was received from Ms. Bittner consisting of the following: another list of the signers of the request forms setting forth their names, addresses, lot and block numbers and values of lots; a document that appears to be a verification by Ms. Bittner of the list of signers; and a signed statement by Robert E. Schwartz, CPA as to the 2007 assessment value of the Strathmere section of Upper Township as stated in the “Cape May County Abstract of Ratables”.
Mr. Young advised the Committee that their task this evening is to determine if the document submitted should be referred to the Planning Board or should be returned to the Citizens Association as defective and not in accordance with the statute.
Prior to opening the meeting for public comment, the Mayor asked Mr. Newman to comment on correspondence received from the County regarding Emergency Services to Strathmere. Mr. Newman stated that a story recently appeared in the newspaper about vehicle weight restrictions on the Lower Twp./Diamond Beach Bridge. The story immediately put the Township on alert about the Corson’s Inlet Bridge primarily concerning the agreement we have with Ocean City for emergency services for Strathmere. We immediately contacted the County and at their request submitted axle weights for Ocean City’s apparatus. The information was verified and then approved by the County Engineer. The interlocal agreement entered into in the earlier part of this year is in full force with no restrictions.
The Mayor then opened up the meeting for public comment and the following speakers were heard:
Leonard C. Desiderio, Mayor of Sea Isle City, commented that Sea Isle City and Upper Township have enjoyed a good working relationship throughout the years, and that Sea Isle City is going to remain out of this issue and let Upper Township handle it. He wished good luck to both Upper Township and Strathmere in working out any difference they may have.
Stephen Martinelli, Tuckahoe Road, Petersburg, stated he has lived here for 20 years. He urged the Township to vote against this.
Mr. Young explained that at this time this is not a vote for consent or denial of the deannexation request. The issue is whether or not the petition is defective to the extent that the matter should not be referred to the Planning Board, or that it should be presented.
Michael Conallen, 701 Commonwealth Ave., Strathmere, stated that he is a new, year-around resident, that he loves the community but has always felt they are second-class citizens and that they do not benefit from all their tax dollars. He requested that this matter be forwarded to the Planning Board and that they get the opportunity to have the full impact of the law apply. Mayor Palombo asked Mr. Conallen if he felt it was appropriate that the documentation be complete before it is accepted; Mr. Conallen answered in the affirmative.
No other members of the public offered any further comments. The Mayor then closed the public portion section of the meeting and brought the discussion back to the Committee for discussion.
Mr. Young then requested that he be able to give a legal analysis and a further comparison between the specific submissions and the actual language of the statute so that everyone would be clear on the matter, and that the record is clear and complete on how the Committee made its decision. Due to the importance of the issue he felt it was fair to the signers to tell them what they need to do correctly if the Committee decides not to send this to the Planning Board. He stated that Ms. Bittner has asked that even if there are deficiencies that it be referred to the Planning Board anyway and be sorted out there.
The discrepancies between what the statute requires and what was submitted are as follows:
-The statute requires that the de-annexed municipality, in this case Upper Township, consents to, or denies the request. To do this the statute requires Upper Township to receive the petition for annexation to Sea Isle City. We have to receive that document under the statute in order to refer it to the Planning Board. The Citizen’s Association has not complied with the statute and instead has submitted a mere request for deannexation stating that the formal petition is not necessary.
The form signed by the Citizen’s Association states only that the signers have the intention to file the petition for annexation to Sea Isle City, but they have not yet signed it, or produced it. The Township Committee is not in receipt of the petition required under the statute; therefore they have nothing under the statute to refer to the Planning Board.
-The Statute requires the petition for annexation must specifically set forth the boundaries of the land to be annexed. There is no specific description of the land in any of the documents submitted. The forms signed by the voters refer only to “Strathmere” while other documents refer to “Strathmere and Whale Beach”. There is no description of the boundaries with respect to marsh areas, wetland areas, Corson’s Inlet, beach areas, and specific lots and blocks. No boundary or description of the property was included or apparently existed when the request forms were signed.
The statute specifically requires that the signers execute a petition specifically setting forth the boundary of the land to be annexed. It does not exist. A formal petition with specific boundaries must be submitted.
Mr. Young stated that in his opinion this is a fatal defect in the documents and that new signatures are required when a specific boundary is provided. He advised the Committee that they still have the ability to pass it on to the Planning Board if they feel that it is appropriate and complete.
-The statute requires the annexation petition be duly verified by one of the signers. The document submitted does not contain this verification. Instead Ms. Bittner, not one of the signers, nor apparently a registered voter in the area, submitted her own attempt of verification of the list of signers.
-The statute requires an oath of the Tax Assessor or someone having access to the Assessor’s books, be attached to the petition setting forth the assessed value of real estate of the signers and the total assessed value of the land within the boundaries to be annexed. The document submitted was not an oath and was not signed by the Assessor or someone familiar with the Assessor’s books. Instead, it was a simple one-line statement from Robert Swartz, CPA, indicating a total assessed value of the Strathmere section. Again, there were no descriptions or boundaries for the reference of Strathmere.
A one-line statement from the CPA stating that this is what he feels the value is, is not acceptable because it is not under oath and it is not based on the Assessor’s records. This statement is based on the Cape May County Abstract of Ratables, which is not the Assessor’s records and possibly could differ.
The statute requires that we receive an oath of the Assessor or someone familiar with the Assessor’s books, that lists each of the properties of the people that signed and also the total value of all the properties in the area. The documents submitted do not even contain a boundary of the total area.
He opened discussion to the Township Committee for any questions on any of the procedural issues or the documents submitted.
The Committee continued further discussion on the matter.
Mr. Young stated that Ms. Bittner feels that these are technical deficiencies and that it is not inappropriate to send to the Planning Board and to let it be sorted out by the Planning Board. Mr. Young disagreed and stated that it is not a correct reading of the law. If sent in its present form it would require the Planning Board to expend municipal resources to resolve all of these issues in a document that should have had it resolved when it was submitted. That would put the Township in a bind for the time frame. Mr. Young explained time frame specifics—14 days to refer it to the Planning Board; the Planning Board then has 45 days to then report back to the Committee; then the Committee has 30 days to make a decision. The Planning Board would have to resolve what the question was, in addition report on all the planning and financial aspects of the request. Which is made very difficult by the deficiencies in the petition.
Mayor Palombo asked if there were any other questions. He stated he was both surprised and disappointed that there were not many public comments. He stated that he personally recognizes Strathmere’s right to file for deannexation however, he also recognizes Upper Township’s right to have full, appropriate, complete documentation. He made a motion that the Township Committee adopt a resolution rejecting the request outright as it is not a petition under the statute. He read the following resolution into the record so that everyone would be familiar as to why this motion was made.
TOWNSHIP OF UPPER
CAPE MAY COUNTY
R E S O L U T I O N
RESOLUTION NO. 196-2007
RE: FINDING THE REQUEST FOR DEANNEXATION BY THE CITIZENS FOR STRATHMERE AND WHALE BEACH FATALLY DEFECTIVE UNDER THE REQUIREMENTS OF N.J.S.A. 40A:7-12
________________________________________________________________
WHEREAS, on September 18, 2007 the Township Clerk received correspondence from Mary D’Arcy Bittner, Esquire on behalf of an organization known as Citizens for Strathmere and Whale Beach (hereinafter “Citizens Association”); and
WHEREAS, in said correspondence Ms. Bittner indicated she was filing on behalf of the Citizens Association “a petition for deannexation from Upper Township of those areas known as Strahtmere and Whale Beach”; and
WHEREAS, said correspondence enclosed original petition forms signed apparently by 115 registered voters; and
WHEREAS, the individual forms signed by each person were substantially the same except for dates ranging from April 27, 2007 to August 3, 2007, with the majority of the forms dated in May 2007; and
WHEREAS, such forms set forth that the signer indicated his or her “intention to sign the formal petition to be presented to the governing body of Sea Isle City seeking annexation of Strathmere”; and
WHEREAS, said forms contained no mention of Whale Beach or any other description setting forth the boundaries of the land to be deannexed; and
WHEREAS, the signatures on said forms where neither witnessed nor notarized and no verification by a signer was provided with this submission; and
WHEREAS, N.J.S.A. 40A:7-12 requires the following in a written petition requesting the annexation of one section of a municipality to another contiguous municipality:
(A) The petition must specifically set forth the boundaries of the land to be annexed.
(B) The petition must be signed by 60% of legal registered voters residing therein.
(C) The petition shall be duly verified by one of the signers.
(D) Attached to the petition shall be an oath of the municipal assessor, or other person having access to the assessor’s books, setting forth the assessed value of the real estate within the boundaries for the preceding year and the amount of real estate assessed to any of the persons on the petition.
(E) The petition shall have attached thereto a resolution of the municipal governing body of the municipality where said land is located consenting to said annexation; and
WHEREAS, N.J.S.A. 40A:7-12 specifically requires that prior to action on a resolution to consent to or to deny the petition for annexation the governing body of the municipality in which the land is located shall, within 14 days of receipt of the petition, refer the petition to its planning board; and
WHEREAS, a review of the initial submission by the Citizens Association to the requirements of the ordinance raised significant concerns as to whether or not the submission complies with statutory requirements; and
WHEREAS, after legal counsel for the Citizens Association was advised as to such concerns her response was that the “formal petition” was not necessary at this time and in five subsequent submissions from September 23, 2007 through September 28, 2007 reiterated this position but provided additional information in an attempt to correct the alleged deficiencies in the submission, maintaining that if there is any confusion as to the location of the property for proposed deannexation or other matters which require clarification such issues may be dealt with by the planning board after the Township refers same to the planning board; and
WHEREAS, the Township Committee of the Township of Upper having duly reviewed the various documents and information submitted by the Citizens Association in its request for deannexation as well as the law and statute applicable makes the following findings:
1. N.J.S.A. 40A:7-12 requires that the Township Committee of Upper Township either consent to or deny the petition for annexation. To do this, the statute requires the Township Committee to receive “the petition” for annexation to Sea Isle City for referral to the Upper Township Planning Board. The Citizens Association has not complied with the statute. Instead it has submitted a mere “request” for deannexation stating the “formal petition” is not necessary.
2. Forms signed by the Citizens Association state the signers “intention” to file “the petition” for annexation at a later date.
3. The Township Committee is not in receipt of the petition required under the statute for referral to the planning board.
4. N.J.S.A. 40A:7-12 requires a petition for annexation must specifically set forth the boundaries of the land to be annexed. There is no specific description of the land in any of the documents submitted. Forms signed by voters refer only to “Strathmere” while other documents refer to “Strathmere and Whale Beach”. There is no description of the boundary with respect to marsh areas, wetland areas, Corson’s Inlet, beach areas and specific lots and blocks. No boundary or description of the property was included, or apparently existed, when the request forms were signed. A petition specifically setting the boundaries of the land to be annexed does not exist. This formal petition, with the specific boundaries, must be submitted in order to refer same to the planning board. In addition, any map submitted now was not before the signers when they executed their statements. This is a fatal defect. If and when a specific boundary is provided new signatures are required.
5. The statute requires that the annexation petition be duly verified by one of the signers. The documents submitted do not contain this verification. Instead, Ms. Bittner, not one of the signers nor apparently a registered voter in the area, submitted her own attempt at verification of a list of signers.
6. The statute requires an oath of the assessor, or someone having access to the assessor’s books, be attached to the petition setting forth the assessed value of the real estate of the signers and the total assessed value of the land within the boundary to be annexed. The document submitted is not an oath and was not signed by the assessor nor, apparently, by someone familiar with the assessor’s books. Instead it was a simple one line statement from Robert E. Swartz, C.P.A. indicating a total assessed value of the “Strathmere section” as stated in the Cape May County Abstract of Ratables, with, again, no description or boundaries for the reference to “Strathmere”. The County Abstract of Ratables is not the same as the assessor’s books. There was no attachment submitted, under oath or otherwise, setting forth the assessed value of the real estate contained within the boundaries as required under the statute.
NOW, THEREFORE, BE IT RESOLVED by the Township Committee of the Township of Upper, in the County of Cape May and State of New Jersey, that the documents and correspondence submitted by legal counsel for the Citizens Association do not meet the requirements of a petition for annexation under N.J.S.A. 40A:7-12 and same are hereby rejected as substantially and fatally deficient.
BE IT FURTHER RESOLVED, by the Township Committee of the Township of Upper that since the request for deannexation submitted by the Citizens Association is not the petition required under N.J.S.A. 40A:7-12 it is not appropriate that same should be referred to the planning board for action.
BE IT FURTHER RESOLVED, by the Township Committee of the Township of Upper that the request for deannexation submitted by the Citizens Association shall be returned to the Citizens Association by the Township Clerk with a copy of this Resolution.
Motion was seconded by Curtis Corson. There was no further discussion by the Township Committee.
The roll call vote was taken as follows:
NAME YES NO ABSTAINED ABSENT
Camp x
Conrad x
Corson x
Newman x
Palombo x
There being no further business this evening, motion was made by Jay Newman, second by Barbara Camp to adjourn. During roll call vote all five Committee members voted in the affirmative. Next meeting scheduled for Tuesday, October 9, 2007 at 7:30 P.M.
Minutes prepared by
Wanda Gaglione, RMC
Municipal Clerk