ERIC M. BERNSTEIN & ASSOCIATES, L.L.c.Two North RoadP.O. Box 4922

Warren, New Jersey 07059(732) 805-3360; (732) 805-3346 FaxAttorneys for DefendantsOur File No. 1123-1259

KA THERINE WATT,

Plaintiff,

-vs-

NORTH PLAINFIELD BOROUGHCLERK GLORIA PFLUEGER ANDNORTH PLAINFIELD BOROUGHATTORNEY ERIC BERNSTEIN,

Defendants.

SUPERIOR COURT OF NEW JERSEYLAW DIVISIONSOMERSET COUNTYDOCKET NO. SOM-C-12090-07

CIVIL ACTION

DEFENDANTS' BRIEF IN SUPPORT OFMOTION TO DISMISS

ERIC M. BERNSTEIN & ASSOCIATES, L.L.C.Two North Road

P.O. Box 4922

Warren, New Jersey 07059(732) 805-3360; (732) 805-3346 Facsimile

Attorneys for Defendants

TABLE OF CONTENTS

TABLE OF AUTHORITIES 3

PRELIMINARY STATEMENT 5

STATEMENT OF FACTS '" 6

LEGAL ARGUMENT 8

POINT ONE-Standard on Motion to Dismiss , 8

POINT TWO-Plaintiff'sComplaint Should be Dismissed Because the ProposedOrdinance Is Unconstitutional and Unlawful. 9

POINT THREE-Plaintiff's Complaint Should Be Dismissed Because the OrdinanceAt Issue Is a Zoning Ordinance Which Cannot Be Passed Through the InitiativeProcess 11

POINT FOUR-Plaintiff's Complaint Should Be Dismissed Because Both DefendantsAre Entitled to Immunity for Their Actions And/Or Inactions 14

CONCLUSION 15

2

TABLE OF AUTHORITIES

Case Law

Amelchenko v. Freehold Borough, 42 NJ 541 (1964) .1-'

Atlantic City Housing Action Coalition v. Deane, 181 NJSuper. 412 (Law Diy. 1981) .1~

Borough of Roselle v. Santone Construction Co., 119 NJSuper. 314 (App. Diy. 1972) 10

Energy Rec. v. Dept. ofEnv. Prot., 320 NJSuper. 59 (App. Div. 1999) 9

First Nat'! Bank of Boston v. Bellotti, 435 US 765 (1978) .10

In re Appointment of Counsel to CLM Const. Co., 277 NJSuper. 329 (App. Diy. 1994) 10

Kenny v. Duro-Test Corp., 91 FSupp. 633 (D.N.J. 1950) 10

Kozesnik v. Montgomery Township, 24 NJ 154 (1975) 10

Lynch v. Household Finance Corp., 405 US 538 (1972) 10

Metropolitan Life Ins. Co. v. Ward, 470 US 869 (1985) 10

Pizzo Mantin Group v. Township of Randolph, 137 NJ 216 (1994) .12

Printing Mart v. Sharp Electronics, 116 NJ 739 (1989) 9

Red Star Express Lines v. DeStefano, 104 NJSuper. 102 (App. Diy. 1968) 10

Sixth Camden Corp. v. Township of Evesham, 420 FSupp. 709 (D.N.J. 1976) 10

Statutes

NJS.A. 1:1-2 9

NJS.A. 40:55D-4 12

NJS.A. 40:55D-26 , .11

NJSA. 40:55D-62(b) , , 6, 11

NJS.A. 40:69A-184 ,., 5,6

NJS.A. 59:2-3 '" 14

3

N.J.S.A.S9:3"'2 '.' ...•.• '.' , ...•............~.........•................•............... ;.............•...•.• 14

Court' ••

Ruk4:6-2 .........•.. ,;- , ;.L ..· : ,...........•..........•.........•.......... : '8

4

PRELIMINARY STATEMENT

Defendants, Gloria Pflueger, Borough Clerk for the Borough of North Plainfield

(hereinafter referred to as "Defendant Pflueger"), and Eric Bernstein, Esq., Attorney for the

Borough of North Plainfield (hereinafter referred to as "Defendant Bernstein"), file this Motion to

Dismiss the Complaint in lieu of Answer because, as a matter of law, Plaintiff cannot sustain the

allegations of the Complaint.

The basis for Plaintiff's lawsuit is that Defendant Pflueger, acting upon the advice of

Defendant Bernstein, refused to certify a petition of signatures submitted by Plaintiff pursuant to

the initiative provisions of the Faulkner Act, NJS.A. 40:69A-184, et seq. According to Plaintiff,

the denial of the petition was improper. Plaintiff has brought the instant action seeking an

invalidation of the denial of the petition and ordering the Defendants to certify the petition so that

the proposed ordinance can be submitted to the voters.

Plaintiff presents no valid cause of action for this court to consider. The proposed

ordinance which Plaintiff seeks to have enacted is discriminatory and unlawful and cannot be

enacted whether through the initiative process or otherwise. In addition, the proposed ordinance

submitted for certification is a zoning ordinance which, by law, cannot be passed through the

initiative and referendum process. Finally, notwithstanding the unconstitutionality and impropriety

of the proposed ordinance, any action or inaction on the part of either of the Defendants is entitled

to absolute immunity.

5

STATEMENT OF FACTS

On or about September 19, 2007, Plaintiff, as a member of a Committee of Petitioners and

petition signatory, submitted a petition package to Defendant Pflueger for certification pursuant to

the initiative provisions of the Faulkner Act, NJSA. 40:69A-184, et seq. Plaintiff sought

certification of the petition of signatures gathered in support of an ordinance entitled, "Borough of

North Plainfield Corporate Land Development and Local Self-Government Ordinance." A copy of

the proposed ordinance is attached hereto as Exhibit A. According to the very language of the

ordinance, "The purpose of this Ordinance is to eliminate corporate land development. ..This

Ordinance furthers that goal by preventing persons from using non-family owned corporations to

engage in land development within the Borough."

By letter dated October 9, 2007, Defendant Pflueger informed Plaintiff that she was

rejecting the petition and that the ordinance could not be placed on the ballot for voters to consider

because, pursuant to NJSA. 40:55D-62(b), no zoning ordinance can be submitted to or adopted by

initiative or referendum. In addition, Defendant Pflueger advised Plaintiff that the ordinance

contained an unlawful proposition over which the Borough did not have the power to act.

Defendant Pflueger wrote this letter as a result of the advice obtained from Defendant Bernstein

and, for that reason alone, Defendant Bernstein is named as a defendant in this matter.

Even a cursory reading of the proposed ordinance reveals a clearly discriminatory and

unlawful purpose and effect. For example, Section 5 of the proposed ordinance states that the

following are unlawful:

"Section 5.1: It shall be unlawful for any person, corporation, or other entityto use a corporation or syndicate to engage in land development within theBorough.Section 5.2: It shall be unlawful for any person to assist a corporation toengage in land development within the Borough.

6

Section 5.3: It shall be unlawful for any director, officer, owner, or managerof a corporation to use a corporation to engage in land development withinthe Borough."

Even more egregious is Section 5.4, which states that:

"No corporation doing business within the Borough of North Plainfield shall berecognized as a "person" under the United States or New Jersey Constitutions, orlaws of the United States or New Jersey; and no corporation shall be afforded theprotections of the Contracts Clause or Commerce Clause of the United StatesConstitution, or similar provisions found within the New Jersey Constitution, withinthe Borough of North Plainfield nor shall those corporations possess the authority toenforce State or federal preemptive law against the people of North PlainfieldBorough. Within the Borough of North Plainfield, corporate claims to "future lostprofits" shall not be considered property interests under the law, and thus, shall notbe recoverable by corporations seeking those damages."

The Ordinance also confers "person" status on "natural communities" and "ecosystems" in the

Borough such that they are entitled to civil rights. See Section 5.6. In addition, Section 5.10 states

that "no permit, license, privilege or charter issued by any Regulatory Agency, Commission or

Board" which would violate the provisions of the ordinance or "deprive any Borough resident,

natural community, or ecosystem of any rights, privileges, or immunities secured by this

Ordinance" shall be recognized as valid.

Further indicating the discriminatory nature of the ordinance is Section 7, which states that

the restrictions of the ordinance do not apply to "persons using a family land development

corporation or syndicates to engage in land development. In order to qualify for this exception, at

least one of the family members in a family land development corporation or syndicate shall have

been a permanent Borough resident for at least 2 years, actively engaged in the day-to-day labor

and management ofland development within the Borough of North Plainfield." That section also

states that none of the corporation's members, partners or stockholders can be "nonresident aliens"

unless all of the stockholders, members or partners are "persons related within the fourth degree of

kinship". Section 9 makes violation of the ordinance a "criminal summary offense."

Further compounding the unconstitutionality and unlawfulness of the ordinance is Section

11which states, in pertinent part, that:

"Any attempts to use other units and levels of government to preempt, amend, alter,or overturn this Ordinance, or parts of this Ordinance, shall require the BoroughCouncil to hold public meetings that explore the adoption of other measures thatexpand local control and the ability of residents to protect their fundamental andinalienable right to self-government. It is declared that those other measures maylegitimately include the partial or complete separation of the Borough from theother units and levels of government that attempt to preempt, amend, alter, oroverturn this Ordinance."

Defendants' refusal to certify the petition was entirely proper because the ordinance is

unconstitutional and could never validly be enacted, whether through the initiative process or

otherwise. Moreover, municipalities are prohibited from passing zoning ordinances via the

initiative process. Despite Plaintiffs contentions to the contrary, the subject ordinance is a zoning

ordinance, as it seeks to regulate land development within the Borough. As such, Plaintiffs

Complaint fails to state a cause of action and must be dismissed.

LEGAL ARGUMENT

POINT ONE

Standard on Motion to Dismiss

Rule 4:6-2(e) of the New Jersey Rules of Court governs motions to dismiss for failure to

state a claim. On a motion under this Rule, the complaint must be searched in depth and with

liberality to detennine if a cause of action can be gleaned even from an obscure statement,

particularly if further discovery is taken. Every reasonable inference is accorded the plaintiff and a

complaint should not be dismissed where a cause of action is suggested by the facts and a theory of

8

actionability may be articulated by amendment of the complaint. Printing Mart v. Shmp

Electronics, 116 NJ 739, 746 (1989). However, if the complaint states no basis for relief and

discovery would not provide one, dismissal of the complaint is appropriate. Energy Rec. v. Dept.

of Env. Prot., 320 NJSuper. 59, 64 (App. Div. 1999).

Even under the above liberal standard, Plaintiffs Complaint fails to state a cause of action.

There are no facts in dispute and the only issue is whether Defendants properly refused to certify

the petition submitted by Plaintiff for placement of the subject ordinance on the ballot for voters to

consider. A simple reading of the proposed ordinance reveals that it is clearly discriminatory and

unconstitutional and Defendants properly refused to certify it. Moreover, there is no amendment to

the Complaint and no set of facts which Plaintiff could raise that would present a cause of action.

The problem lies with the ordinance itself. As such, the Complaint must be dismissed.

POINT TWO

Plaintiff's Complaint Should Be Dismissed Because theProposed Ordinance Is Unconstitutional and Unlawful

The ordinance Plaintiff proposes to enact through the initiative process IS wholly

unconstitutional and improper and cannot validly be enacted whether through initiative or

otherwise. Some of the most egregious provisions of the proposed ordinance are set forth above

and what they clearly demonstrate is that the sole intent of the ordinance is to discriminate against

non-family owned corporations by "preventing persons from using non-family owned corporations

to engage in land development within the Borough" and stripping such corporations of any legal

status, rights and/or privileges within the Borough of North Plainfield concerning land

development.

There is no question that, under New Jersey law, a corporation is considered a "person"

entitled to the same rights and privileges as an individual. NJSA. 1:1-2, which sets forth

9

definitions and general rules for New Jersey Statutes, defines a "person" as including corporations,

companies and associations, as well as individuals. By conferring such status on a corporation, the

law has granted it the same constitutional protections as those bestowed upon individuals. See, i.e.

Metropolitan Life Ins. Co. v. Ward, 470 Us. 869 (1985); First Nat'l Bank of Boston v. Bellotti,

435 Us. 765 (1978); Kenny v. Duro-Test Corp., 91 F.Supp. 633 (D.N.J. 1950); In re Appointment

of Counsel to CLM Const. Co., 277 NJSuper. 329 (App. Div. 1994); Borough of Roselle v.

Santone Construction Co., 119 NJSuper. 314 (App. Div. 1972); Red Star Express Lines v.

DeStefano, 104 NJSuper. 102 (App. Div. 1968). More specifically, a corporation is entitled to

protection under the Equal Protection and Due Process Clauses of the Fourteenth Amendment

against violation of its property rights. Sixth Camden Corp. v. Township of Evesham, 420 F.Supp.

709 (D.N.J. 1976).

The United States and New Jersey Constitutions require that persons similarly situated be

treated equally. To this end, ordinances must avoid drawing any distinctions between property

owners that are irrational or discriminatory. Kozesnik v. Montgomery Township, 24 NJ 154

(1975). The United States Supreme Court has consistently held that rights in property are no less

protected than any other person liberty or civil right. Lynch v. Household Finance Corp., 405 Us.

538, 543 (1972).

By Plaintiffs own admission, the purpose of the ordinance is to strip non-family owned

corporations of their legal status as "persons". Paragraph 14 of Plaintiffs Complaint states that "If

we adopt the law, corporations will not have legal standing to seek vindication of Constitutional

and civil rights, because they will not be considered legal persons within our Borough." Likewise,

as stated above, Section 5.4 of the proposed ordinance states that:

"No corporation doing business within the Borough of North Plainfield shall berecognized as a "person" under the United States or New Jersey Constitutions, or

10

laws of the United States or New Jersey; and no corporation shall be afforded theprotections of the Contracts Clause or Commerce Clause of the United StatesConstitution, or similar provisions found within the New Jersey Constitution, withinthe Borough of North Plainfield nor shall those corporations possess the authority toenforce State or federal preemptive law against the people of North PlainfieldBorough."

Essentially, what Plaintiff seeks to accomplish, through this ordinance, is to make the United States

and New Jersey Constitutions wholly inapplicable to corporations in the Borough of North

Plainfield, but make constitutional protections available to "natural communities" and

"ecosystems" within the Borough by conferring upon them the status of "persons" under the law.

There is no possible construction of this ordinance which would or could pass constitutional

muster. As such, Plaintiff states no cause of action and the Complaint must be dismissed.

POINT THREE

Plaintiff's Complaint Should Be Dismissed BecauseThe Ordinance at Issue Is A Zoning Ordinance

Which Cannot Be Passed Through the Initiative Process

Plaintiff also maintains that Defendants' refusal to certify the petition was Improper

because the ordinance at issue is not a zoning ordinance and therefore may be passed through the

initiative process. Contrary to Plaintiffs assertions, the ordinance at issue is a zoning ordinance

and thus cannot be properly enacted through initiative.

NJSA. 40:55D-62(b) states that, "No zoning ordinance and no amendment or revision to

any zoning ordinance shall be submitted to or adopted by initiative and referendum." While there

is nothing which specifically defines what is or is not considered a "zoning ordinance", NJSA.

40:55D-62(b)'s prohibition against the enactment of zoning ordinances through the initiative

process must be read in conjunction with other applicable statutory provisions to determine its

intent. For example, NJSA. 40:55D-26(a) provides that prior to the adoption of a development

11

regulation, the planning board must make and transmit to the governing body a report concerning

the proposed regulation. That section further states in relevant part that, "Nothing in this section

shall be construed as diminishing the application of the provisions of. .. (C. 40:55D-62) to any

zoning ordinance or any amendment or revision thereto." In addition, in Pizzo Mantin Group v.

Township of Randolph, 137 NJ 216 (1994), the New Jersey Supreme Court specifically held that

the application of principles of zoning and planning are the sole province of the governing body

and that in drafting all land use ordinances, governing bodies must make a significant attempt to

incorporate the general purposes of zoning and planning through their development regulations.

In addition, NJSA. 40:55D-4 sets forth certain definitions applicable to the Municipal

Land Use Law. While there is no definition for "zoning ordinance," there is a definition for

"development regulations", which includes zoning ordinances. There can be no question that the

ordinance proposed by Plaintiff is a development regulation. There is also no question that it

addresses and affects land use and development within the Borough. It is clearly aimed towards

"land development projects" and specifically states that:

"The people of the Borough recognize that state preemptions of local land usedecision have been masked by a system of regulations and permits, and that zoningand the provisions of the New Jersey Municipal Land Use Law (NJSA 40:55D-l etseq.) create the illusion of community self determination while extending privilegesto certain development corporations, thus violating the rights of people,communities and ecosystems." See Section 3 of proposed ordinance.

The ordinance repeatedly and continuously refers to "land development" and "land use" in

the Borough. In Section 8 of the proposed ordinance defines "Engage in Land development" as

"any actions taken to construct a group of two or more residential buildings, whether proposed

initially or cumulatively; or any actions taken to construct a single nonresidential building on a lot

or lots regardless of the number of occupants or tenure." Based on a reading of the proposed

12

ordinance and its vanous prOVISIOnsregarding development and land use, it is reasonable to

classify such ordinance as a "zoning ordinance" which cannot be adopted through initiative and

referendum.

Even if the proposed ordinance is not actually a "zoning ordinance", consideration of the

purpose and principles of the Municipal Land Use Law indicates that the ordinance proposed by

Plaintiff should not be one that is adopted through initiative and referendum. A similar issue was

presented in Atlantic City Housing Action Coalition v. Deane, 181 NJSuper. 412 (Law Div.

1981). There, voters filed a complaint seeking a writ of mandamus directing the City to process an

initiative petition through which the voters proposed a redevelopment ordinance. The court noted

that while the power of initiative and referendum should be liberally construed, the power is

subject to, and must be construed with, governing statutory and constitutional provisions.

According to the court, the right to initiative did not include the right to propose any ordinance and

adopt same at the polls. The court held that because the process for municipal redevelopment was

governed by statute, a redevelopment ordinance could not be introduced through the initiative

procedure. The court stated that important in its decision was the fact that before proceeding with

a redevelopment plan, the governing body of a municipality must seek the recommendation of its

planning board regarding various issues. The court stated that "it is not within reasonable

contemplation that the Legislature would intend the possibility of fragmentation or disruption of

such a comprehensive redevelopment process ... by isolated and uncoordinated actions of the local

electorate via the initiative process." Jd. at 419.

For similar reasons, the ordinance at issue here, even if it could pass constitutional muster,

could not be adopted through the initiative process. The Municipal Land Use Law is clear in

granting the municipal governing body the sale authority to enact land use regulations, often

13

requmng reVIew and recommendation by the planning board. Even if Plaintiff s proposed

ordinance is not considered a "zoning ordinance," it very obviously is a land use regulation which,

as in Deane, is governed by a specific statutory scheme.

POINT FOUR

Plaintiff's Complaint Should Be DismissedBecause Both Defendants Are Entitled to Immunity

For Their Actions And/Or Inactions

If by some stretch of the imagination Plaintiffs proposed ordinance could be considered a

valid ordinance for submission to the voters, any action or inaction on the part of either of the

Defendants for failure to certify Plaintiffs petition is immune from liability.

NJSA. 59:2-3(a) states that a public entity is not liable for an injury resulting from the

exercise of judgment or discretion vested in the entity. NJSA. 59:2-3(b) provides that a public

entity is not liable for legislative action or inaction, or administrative action or inaction of a

legislative nature. The Comment to 59:2-3(b) specifies that the section confers the absolute

immunity which is contained in New Jersey case law and which recognizes the principle that

certain high-level decisions calling for the exercise of official judgment or discretion must not be

subject to the threat of liability. Amelehenko v. Freehold Borough, 42 NJ 541, 550 (1964).

NJSA. 59:3-2 immunizes a public employee in the exercise of discretion within the scope of his

or her employment and is the employee counterpart to the entity immunity of 59:2-3.

In the instant matter, the liability of the Defendants is solely based on the fact that

Defendant Pflueger, acting upon the advice of Defendant Bernstein, failed to certify the petition for

Plaintiffs ordinance. The failure to certify the petition was based on the reasoned and

discretionary judgment of the Defendants that the ordinance was discriminatory and

unconstitutional and should not be certified. This is exactly the type of discretionary exercise that

is shielded with absolute immunity.

CONCLUSION

Based on the foregoing and without repeating at length, Defendants respectfully request

that Plaintiffs Complaint be dismissed with prejudice for failure to state a claim.

Respectfully submitted,

ERIC M. BERNSTEIN & ASSOCIATES, L.L.c.

AttOme~ fo dend~ts ~ -By: -'~~-

Dated: December .....~ , 2007

15