DIANA C. ORTIZ VS. TOWNSHIP OF NORTH BERGEN (L-4872-18, HUDSON COUNTY AND STATEWIDE) ( 2019 )


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  •                                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
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    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-1655-18T3
    DIANA C. ORTIZ,
    Plaintiff-Appellant,
    v.
    TOWNSHIP OF NORTH BERGEN
    BOARD OF EDUCATION,
    Defendant-Respondent,
    and
    HUDSON COUNTY BOARD
    OF ELECTIONS,
    Defendant.
    ________________________________
    Submitted May 20, 2019 – Decided July 25, 2019
    Before Judges Haas, Sumners and Susswein.
    On appeal from the Superior Court of New Jersey, Law
    Division, Hudson County, Docket No. L-4872-18.
    Mario Miguel Blanch, attorney for appellant.
    Chasan Lamparello Mallon & Cappuzzo, PC, attorneys
    for respondent (Mitchell L. Pascual, of counsel and on
    the brief; Qing Hua Guo, on the brief).
    PER CURIAM
    Plaintiff Diana Ortiz appeals Chancery Judge Joseph A. Turula's order
    denying her request to permanently enjoin a special election public referendum
    vote to authorize the Township of North Bergen Board of Education (Board) to
    borrow $60,000,000, for capital improvements in the school district. We affirm
    for the cogent reasons stated in the judge's oral decision.
    I.
    The North Bergen school district is a Type II district, which must have its
    electorate approve a ballot question whenever it wants to issue bonds for capital
    improvements in the district. N.J.S.A. 18A:24-10(c). On November 7, 2018,
    the Board passed a resolution approving bond referendum language to be voted
    upon at a special election on December 11. The referendum sought approval of
    a capital improvement plan to alleviate classroom overcrowding and modernize
    school facilities to provide better lighting and accessibility; new science,
    technology, engineering and math programs; and vocational programs. Long-
    term bonds totaling approximately $60,000,000 would fund the project.
    A-1655-18T3
    2
    Plaintiff filed an order to show cause and a verified complaint to
    permanently enjoin the election. On December 10, the day before the election,
    Judge Turula dismissed the action and denied plaintiff's request to stay the
    election pending an appeal to this court. 1 Later that same day, we denied
    plaintiff's emergent application to stay "without prejudice to [plaintiff] litigating
    the outcome of [the] election in the trial court or this court on an appropriate
    record."    On election day, our Supreme Court denied plaintiff's emergent
    application and confirmed our decision allowing plaintiff the option to later
    appeal. The voters of North Bergen approved the referendum. This appeal
    followed.
    II.
    Before us, plaintiff contends the referendum "was void on its face,"
    because its language violated statutory and regulatory requirements.
    Consequently, we are asked to review questions of law, which we review de
    novo. Johnson v. Roselle EZ Quick LLC, 
    226 N.J. 370
    , 386 (2016); Tumpson
    v. Farina, 
    218 N.J. 450
    , 467 (2014).
    1
    Judge Turula also dismissed a lawsuit with prejudice by a different plaintiff,
    which claimed the Board violated the Open Public Meetings Act, N.J.S.A. 10:4-
    6 to -21, when it approved the resolution. That dismissal is not before us.
    A-1655-18T3
    3
    A.
    Plaintiff first argues the referendum is contrary to N.J.S.A. 19:3-6,
    because it was not written in simple language and was improperly phrased as a
    statement, not a question, which was thus deceptive and confusing. N.J.S.A.
    19:3-6 provides that "[a]ny public question voted upon at an election shall be
    presented in simple language that can be easily understood by the voter. The
    printed phrasing of said question on the ballots shall clearly set forth the true
    purpose of the matter being voted upon."
    The referendum provided:
    PROPOSAL
    The Board of Education of the Township of North
    Bergen in the County of Hudson, New Jersey is
    authorized: (a) to acquire real property formerly known
    as the Hudson County Technical High School, located
    at Tonnelle Avenue and 85th Street, in North Bergen
    and described on the Township tax map as Block 458,
    Lot 1 and Block, 458.01, Lots 1 and 6.01 (High School
    West), and to provide for additions, renovations,
    alterations and improvements thereto and also to the
    existing North Bergen High School facilities (High
    School East), including fixture, furnishings, equipment,
    site work and related work; (b) to appropriate
    $64,958,000 for such purposes, including $4,958,000
    from capital reserve; and (c) to issue bonds of the
    school district in the principal amount of $60,000,000.
    The final eligible costs of the projects approved by the
    Commissioner of Education are $52,331,912 (with
    A-1655-18T3
    4
    $37,087,622 allocated to High School West and
    $15,244,290 allocated to High School East). The
    proposed improvements include $12,497,548 allocated
    to High School West and $0 allocated to High School
    East for elements in addition to the facilities efficiency
    standards developed by the Commissioner of Education
    or not otherwise eligible for State support pursuant to
    N.J.S.A. 18A:7G-5(g). The State debt service aid
    percentage will equal 48.694% of the annual debt
    service due with respect to the final eligible costs of the
    projects. The Board of Education is authorized to
    transfer funds among the projects approved at this
    special election.
    Plaintiff asserts that the meaning of the referendum's second paragraph in
    relation to the first paragraph is unclear. She indicates the first paragraph states
    the project will cost $64,000,000, but the second paragraph indicates the
    Commissioner of the Department of Education approved only $52,000,000 .
    Therefore, she maintains that the language of the referendum is inconsistent and
    void.
    Plaintiff also asserts that in Board of Education v. City of Hackensack, 
    63 N.J. Super. 560
    , 570-71 (App. Div. 1960), we determined that where the true
    purpose of a referendum was not made known in its language, the referendum
    was not compliant with N.J.S.A. 19:3-6. She also relies upon City of Orange
    Twp. Bd. of Educ. v. City of Orange Twp., 
    451 N.J. Super. 310
    , 328 (Ch. Div.
    2017), where the trial court invalidated a referendum because it found that "the
    A-1655-18T3
    5
    true purpose of [the] municipal public question was not set forth in adequate
    detail so as to allow voters in the City to be sufficiently informed." She indicates
    that Judge Turula found the referendum to be clear given that it is a bonding
    referendum, which is more complex, but avers this reasoning was specifically
    rejected in City of Orange Twp. Bd. of Educ.
    There, the court stated:
    the City argues that "the vast majority of the citizenry
    is not aware of the nuances and complexities of the law"
    and, as such, "these citizens are less likely to be able to
    develop a fair appreciation of the consequences of their
    vote." This argument is also without merit. First of all,
    knowledge of the law's complexities is by no means a
    prerequisite for understanding the consequences of
    one's vote. In no way does this court suggest that the
    law's nuances had to be outlined in detail to the voters.
    The general scope and consequences of one's vote can
    easily be presented to voters in a way that does not even
    mention the law, and can be done in a manner consistent
    with the simple language mandate of N.J.S.A. 19:3-6.
    Finally, the City cannot say that its citizens are "unable
    to develop a fair appreciation of the consequences of
    their vote" and in the next breath, as it does, say that
    "the process should be based upon public information,
    awareness, and education." One position is entirely
    inconsistent with the other.
    [City of Orange Twp. Bd. of 
    Educ., 451 N.J. Super. at 327-28
    .]
    While it may have been preferable to present the referendum in the form
    of a question, we agree with Judge Turula, as well as the Board, that there is no
    A-1655-18T3
    6
    statutory requirement that the referendum must be presented in that manner. We
    look to the Legislature's definition of "public question," which includes: "any
    question, proposition or referendum required by the legislative or governing
    body of the State or any of its political subdivisions to be submitted by
    referendum procedure to the voters of the State or political subdivision for
    decision at elections." N.J.S.A. 19:1-1 (emphasis added). Because we give
    words "their ordinary meaning and significance, recognizing that generally the
    statutory language is the best indicator of [the Legislature's] intent," 
    Tumpson, 218 N.J. at 467
    (citations and quotation marks omitted) (citing DiProspero v.
    Penn, 
    183 N.J. 477
    , 492 (2005)), and "[i]f the plain language leads to a clear and
    unambiguous result, then our interpretive process is over[,]" 
    Johnson, 226 N.J. at 386
    (citations and quotation marks omitted), the Board's referendum
    captioned, "Proposal," constitutes a legitimate public question.
    We likewise concur with the Board that the referendum is stated in simple
    language that can easily be understood and clearly sets forth the purpose of the
    issue being voted upon. The referendum has four main parts. The first part
    states that the Board will purchase a new property and renovate it in conjunction
    with renovating the existing high school. The second part states the cost of
    completing the projects outlined in first part. The third part explains how the
    A-1655-18T3
    7
    Board is going to finance the first part. And the fourth part indicates the amount
    of pre-approved financing assistance the State will provide to the Board for the
    project.
    Plaintiff's reliance on City of Orange Twp. Bd. of Educ., is misplaced
    because in that matter the referendum question simply asked whether the City
    of Orange should remain an appointed board of education or change to an elected
    board. 
    Id. at 316.
    There was neither an explanation for the change nor did the
    referendum provide a difference between an appointed board of education and
    an elected board of education. 
    Id. In contrast,
    the Board here held two public
    meetings regarding the methodology and allocation of the finances, as well as
    the anticipated construction and benefit of the upgrades to the students of North
    Bergen.    Therefore, we agree with Judge Turula's reasoning that "the
    [referendum] here does provide how the money would be used and where it
    would go[,]" and unlike "Hackensack . . . this is a bond proposal, language of
    the propos[al] comes directly from the statute[, N.J.S.A. 18A:22-39,] and from
    the regulation[, N.J.A.C. 6A:26-3.7(f),] providing guidance on bond proposals."
    B.
    A-1655-18T3
    8
    Plaintiff lastly argues the referendum is deficient because it does not
    contain the language required by N.J.S.A. 18A:22-39 and N.J.A.C. 6A:26-3.7(f).
    She stresses that the total costs of the project were not included in the submitted
    referendum. She further argues the referendum did not meet the standards of
    the administrative code because it: (1) did not request approval for the local
    share; (2) did not explain the excess costs; and (3) did not include the language
    mandated by the code. We find no merit to these arguments.
    In pertinent part, N.J.S.A. 18A:22-39 requires that a referendum identify
    the capital improvement project and the amount to be raised for the project.
    Similarly, N.J.A.C. 6A:26-3.7(f)(2), in relevant part, provides that the language
    include the "total costs of the school facilities project, disclose the amount
    needed to be raised by school bonds, the State debt-service-aid percentage, the
    final eligible costs, and the excess costs, if any." The regulation further provides
    that the "State debt-service-aid percentage shall be stated as a percentage of the
    annual debt service of the final eligible costs." N.J.A.C. 26A:3.7(f)(2)(i).
    As noted above, we agree with the judge that the bond referendum
    language comes directly from the statute and regulations at issue. It satisfies
    N.J.A.C. 26A:3.7(f)(2) and -(2)(i), by providing that the total cost of the project
    is $64,958,000, the amount that needs to be raised by school bonds is
    A-1655-18T3
    9
    $60,000,000, the State debt service aid percentage "will equal 48.694% of the
    annual debt service due with respect to the final eligible costs of the projects,"
    and the "final eligible costs of the projects approved by the Commissioner of
    Education are $52,331,912."
    Under N.J.A.C. 6A:26-3.7(f)(4), the referendum language must include:
    This school facilities project includes $ (insert amount)
    for school facility construction elements in addition to
    the facilities efficiency standards developed by the
    Commissioner of Education, or that are not otherwise
    eligible for State support pursuant to N.J.S.A. 18A:7G-
    5(g).
    The Board's referendum complied by stating:
    The proposed improvements include $12,497,548
    allocated to High School West and $0 allocated to High
    School East for elements in addition to the facilities
    efficiency standards developed by the Commissioner of
    Education or not otherwise eligible for State support
    pursuant to N.J.S.A. 18A:7G-5(g).
    Accordingly, Judge Turula properly found that the Board's referendum did
    not offend the governing statutory and regulatory requirements, and fittingly
    dismissed plaintiff's efforts to enjoin the Board's capital improvement project.
    We are convinced that the voters of North Bergen were fully aware of what the
    Board was asking them to vote on in the referendum.
    Affirmed.
    A-1655-18T3
    10
    

Document Info

Docket Number: A-1655-18T3

Filed Date: 7/25/2019

Precedential Status: Non-Precedential

Modified Date: 8/20/2019