Updates

Update on the Ordinance – Borough did not rescind the denial letter today, so I’ll be filing a lawsuit tomorrow morning. Hopefully they’ll decide not to fight the lawsuit, save some taxpayer money, and let the voters decide the ordinance question. We’ll see.

Next Town Meeting is Monday, October 29, at 7 p.m. at Vermeule Community Center. As a group, we’ll be presenting and debating the pros and cons of several strategies for sustainable, locally controlled Villa Maria conservation and development; discussing the pros and cons of a recall effort to recall Mayor Janice Allen, and voting on both of those issues to decide next steps as a group. Should be an interesting meeting.

Conserving Land for People

Just in from Hal Hirsch -

Link to a great article about a convent in Mendham Township being conserved by the town in partnership with the Trust for Public Land, with wonderful photographs of the lovely site being conserved.

Parallels

Reading Blessed Unrest, by Paul Hawken, I ran across the interesting fact that:

“In 1787, a dozen people began meeting in a small print shop in London to abolish the lucrative slave trade. They were reviled and dismissed by businessmen and politicians. It was argued that their crackpot ideas would bring down the English economy, eliminate growth and jobs, cost too much money, and lower the standard of living...” (p. 24)

Then, as now, it’s just not true that for society to have healthy commerce, we must also tolerate, or even enable, exploitation of ourselves and our fellow human beings as individuals and communities.

Villa Maria Discussion

Minutes of Villa Maria Subcommittee Meeting held October 13, 2007  

POSITIVE v. NEGATIVE: We have to criticize the local government, in a respectful way, but we can’t always be positive if what’s going on is negative, because we have to talk about what’s wrong to make it righter. Consensus seemed to be that we want to maintain a group identity as the “squeaky wheel with a positive agenda.”

OPEN SPACE: Still trying to work out local v. county v. state. What are we eligible for? What are the application deadlines? Some are in May each year, another one is coming up on October 26. What do we need to file to become eligible for other pots of funding? Contacts made: Kevin Koslosky, Nancy Lawrence, Barbara Marshall, Cherylynn Barnes, of NJ DEP Green Acres Program; John Mattocks of Somerset County Business Partnership; Bob Bzik of the Somerset County Planning Office and Jack Ciatarelli of the Somerset County Freeholders. Do we need to have a ballot referendum on creating a local open space tax?

Things we’ve learned: North Plainfield open space projects are more likely to be funded if we partner with a non-profit conservation organization to maximize funding and expertise to create a land trust, and we have a list of appropriate organizations to contact. There is $1 million sitting in a Special Projects holding account with Somerset County, earmarked for North Plainfield since 2003 or 2004, but we don’t know when/if access to that money expires and what the conditions on spending it might be. Also, municipalities that haven’t used prior allocations are moved lower down on the priority list for future allocations. Gov. Corzine is seeking $3 billion in state budget cuts, open space funding might be cut. To our knowledge, there is no environmental impact study of the environmental value and vulnerability for the site conducted by local, county or state environmental/conservation departments. Why not? And how long would it take to get one done locally and/or by county or state? We know of at least three valid reasons for eminent domain that could be applied to this situation: school overcrowding, pollution, and traffic congestion. There are probably other applicable reasons too.

REAL ESTATE MARKET: Development “rule of thumb” was, until recently, $80,000 per unit to develop. Soft real estate market (hundreds of unsold homes on the market, flood of NJ residents leaving the state to escape the high taxes) has bumped that down to $70,000 per unit. What is the “fair market value” of the Villa Maria buildings and grounds? St. Joseph’s School is closing and likely to be sold by the Catholic diocese; it’s another charming historic building that could be turned into quirky apartments or senior housing, but might wind up being demolished to make room for single-family or condo development. Watchung Hills developer is threatening 70 single family, small lot homes. That’s what “scares” Council President Skip Stabile “to death,” as he recently told Barbara Habeeb. But, in light of the more than 200 single family homes on the market in North Plainfield, is that threat realistic, or bluffing? What about Real Estate Investment Trusts? Are there silent shareholders somewhere behind Watchung Hills at North Plainfield’s Robert McNerney ?

I did some background research over the summer to try to unravel some of the connections – very difficult to do, because corporations are not obliged to make all their information public. The best I could do was to google “James J. Bovino,” who was the developer with Town and Country Developers of Woodcliff Lake, the developer apparently tapped as the only people the Villa Maria nuns would deal with, and probably the group who drafted the original ARC ordinance. Bovino is also linked to Whiteweld, Barrister & Brown, Trinity Trading Corp., and Centuria Corp. It’s not yet clear whether McNerney and Bovino are linked in any way, through any corporate structure, traceable or not, or whether other key local players are linked to the corporate structure.

ZONING: Why change the Villa Maria zoning to age-restricted condos, instead of to large, 2-acre single family plots, or open space, since zoning change is an avenue pursued by the Borough Council in the past and possibly again in the future? Spot zoning is the accusation, by property owners, that a municipality has changed the zoning of only one parcel in such a way that the market value is lowered, but that accusation is rarely made by property owners if the zoning change increases the market value. How have other municipalities preserved open space without becoming vulnerable to spot-zoning challenge, and could we adopt those strategies here? For example, could we rezone every currently undeveloped parcel as open space, on the town-wide understanding that North Plainfield is as built up as we want it to be? Zoning v. use: Could the Borough Council grandfather the original use – “nursing home” – to limit the types of development at the site?

Note on the Self-Governance Ordinance: If the ordinance is passed by the voters, then the builder/developer for a compromise plan would have to be a local, family-owned building company, and that company would not be immune from liability for ecological or public health harms caused by construction. If the Self-Governance Ordinance is not passed by the voters, the builder/developer could be an outside corporation, and that corporation would be immune from liability for ecological and public health harms caused by construction.

Note on the Shade Tree Ordinance: If the Shade Tree Ordinance is passed by the Borough Council or by the voters via initiative, the Villa Maria forest will have significant protection from being cut down, because the newly-created Shade Tree Commission would have permitting authority to deny builders permission to cut down healthy, full-grown trees.

Note on Overcrowding: One municipality – I think Edgewater Park – passed an ordinance to control overcrowding in 2003, imposing fines on landlords for permitting overcrowding. When Gary Lewis called a few weeks ago, the town’s Compliance Officer, asked if the ordinance had been tested in Court, replied “Yes, more than 60 times.” The town prevailed in all 60 cases, collecting about $60,000 in fines, and the problem with overcrowding has been resolved.

Notes on Recall of Mayor: Pros and cons. Advantage is that it holds Mayor Allen accountable for her job performance over the last 8 years, and makes clear voter dissatisfaction with the direction of the town. Disadvantage is that Council President Skip Stabile is likely to be the replacement candidate and his record of standing up for the interests of the townspeople, against the pressures exerted by outside developers, is not much better. Also, because Mayor Allen happens to be a Democrat, efforts to remove her through recall may be perceived, wrongly, as partisan. Would recall be better positioned as a separate project from NPCCR work at citizen education and empowerment? Or is it a key component of continuing to pressure local officials for a thoughtful, responsive change of direction. Proposal: debate this issue at October 29, 2007 Town Meeting and have NPCCR members present vote on it: majority vote prevailing.

Relevant Procedural Information: One, Borough Attorney Eric Bernstein does not work for the Borough of North Plainfield; he is the Mayor’s attorney in any situation of conflict between the executive and legislative branches of local government. Two, any piece of legislation brought up on the Borough Council must have a second to even begin the process, so one Borough Council member alone can’t do anything: there have to be at least two working together to bring some of these issues and proposals formally onto the decision-making table.

OVERALL THOUGHTS: There has never yet been a Borough-sponsored public meeting outlining all the options and discussing the pros and cons of each. The condo plan was presented as a done deal right from the start, presumably after private meetings. Maybe one possibility is to schedule such a public hearing and engage the services of a facilitator to make sure it doesn’t turn into a shouting match.

Note about phases: Condo developers have stated their intention to do their proposed project in phases, i.e. demolish and deforest, hook up utilities, then build a few buildings. Then wait a few years and build a few more. If phases are acceptable for condo development, phases would be an equally valid way to pursue open space conservation, historic preservation, and limited, locally-controlled development of the remaining land.

TO DO LIST:

1) Get an appraisal and establish a “fair market value.”

2) Collect all the information needed to become eligible for and apply for all the county and state open space funding we might be eligible for.

3) Contact the conservation organizations to explore the idea of partnering to conserve the forest with a land trust.

4) Find out how to access the $1 million in Special Projects funding.

5) Put together a ballot referendum on a local open space tax, to put the question to the voters.

6) Find out if Borough could grandfather current nursing home use as a restriction on type of development.

7) Get going on a Natural Resource Inventory and get EPA or other county or state group to conduct an environmental study of the Villa Maria site.

Chasing Lawsuits

I just heard that the Borough has filed an appeal in Campbell v. Borough of North Plainfield, trying to get Judge Ashrafi’s September 10 decision, that found 4-2 is not a supermajority of a 7-member Council, thrown out.

I’ll try to get a copy of the appeal to see what kind of silly red herring arguments the attorneys have put up this time.

But keep it in mind the next time the Mayor or any Council members say they can’t do what the public wants because they have to avoid potential lawsuits come what may.

They are apparently more than willing to go out of their way to spend taxpayer money on lawsuits. (They have another chance to avoid one if they reverse the ordinance petition denial by Tuesday at 5 p.m.)

The relevant questions are: WHAT and WHO are they willing to stand up in Court and fight for, and WHY? Who benefits from this appeal, and from the whole sordid process that’s led up to this point?

A possible $1.3 million in annual tax revenues that may or may not come to fruition sometime in the next 20 years and a handful of local seniors who may or may not be able to afford $350,000 apartments (selling their single-family homes to families with school-aged children in the process), in exchange for a cherished historic landmark, a healthy forest, and maintenance of the current levels of flood risk and traffic congestion, is not a sufficiently detailed, factually-supported, logical or thorough answer.

The floor, as always, is open to any Mayor or Council member who can offer more plausible explanations for this apparently inexplicable behavior.

Other Examples

I’ll be going to a conference for community democracy organizers this coming week, and have received some of the background materials from other organizers in other states.

Here are some of the corporate-power v. democratic self-governance, health/safety/welfare issues that other communities are confronting through law-making initiatives like the ordinance we’re working on here:

New Hampshire – Private bottled water corporations coming into towns including Barnstead, Goffstown, Nottingham, Conway, Webster, and Fryeburg, Maine, to pump out the local groundwater and surface water for bottling, shipment out of the community, and sale.

New Mexico – Agribusiness corporations undermining local seed sovereignty – the right of local people to save, plant and harvest their own seeds for food production.

New York – Wind turbine corporations, in conjunction with state and federal government, intending to place thousands of wind turbines across rural upstate New York, to obtain tax subsidies and demonstrate an effort to confront global warming, even though wind power has a poor record of environmental benefit because it is unpredictable and unstorable, so nuclear and coal-powered power plants must be kept running at full capacity to meet the variable demand.

Ohio – Corporate factory farms on the increase, with attendant air and water pollution, while townships and counties have limited or no law-making power; state legislation has removed local control – even health department supervision – over industrial farming.

Pennsylvania – Longwall coal mining by coal corporations – huge blocks of coal typically 1000 feet wide by 15,000 feet long – are fully removed from underground, removing the support for the earth above it, cracking and destroying homes and other buildings aboveground from the subsidence, disrupting underground water supplies, damaging aboveground highways, bridges and public utilities that must be repaired at public expense.

Virginia – Uranium-mining corporation and state officials restarting plans, on moratorium (but not ban) by the state legislature since 1982, to mine and process uranium and contaminate the Roanoke River watershed with radioactive milling waste. Areas covered include Pittsylvania County, Halifax County, Fauquier County, Culpeper County, Madison County and Orange County.

None of the people in these communities are being protected by state and federal regulatory agencies allegedly responsible for protecting Americans from harm; the state and federal regulatory agencies are aiding and abetting the corporations.

All of these communities have people attempting to protect themselves and their neighbors through locally-adopted binding self-governance mechanisms that take away corporations’ fictional legal “right” to harm the people who live in those places, and place the natural, human and Constitutional self-governance and self-preservation rights of those people boldly front and center.

Rumor Debunking

One of the most frustrating aspects of this work is dealing with the circulation of unfounded rumors about what we are up to, particularly when it’s so easy for people to check the facts.

For one thing, the nj.com North Plainfield forum permits anonymous postings, which lends itself to lots of problems because anonymous posters can’t be held accountable for factual errors or mischaracterizations. (In contrast, I generally post direct quotes or the actual documents, and if I post something factually in error, those mistakes can and have been corrected by more-knowledgable readers posting comments or sending clarification e-mails).

Also, there are just a lot of rumors to keep up with, making it difficult to sift through them, categorize them and rebut the ones that need rebutting.

Two that came to my attention recently:

Dan Glicklich, a former Council President who now lives outside of North Plainfield in an age-restricted community, is apparently canvassing with Councilman Santiago Soto, who is campaigning for election to the council seat he was appointed to after his son, Daniel Soto, moved out of North Plainfield and resigned from the Council.

Mr. Soto faces a challenge from Republican council candidate Jenny Uptegrove.

The rumor is, Mr. Glicklich and Mr. Soto, in their door-to-door canvassing, are telling voters that the Self-Governance Ordinance is “anti-business,” and that Jenny Uptegrove supports it.

Both of those statements are false.

[UPDATE: Another difficulty with debunking rumors is finding out whether the rumor is actually being spread in the way that it's rumored to be being spread. This is another reason why I have such a hard time figuring out when to address a rumor and when to ignore it.

At any rate, Ruth Glicklich sent in the following correction today:

"I happened to have visited your blog and noticed your article. Just for the record, my father, Dan Glicklich has not been canvassing with Santiago Soto. Your statement that he and Santiago are spreading rumors is in itself a rumor. I do not think Santiago has said that his opponent is a supporter of your ordinance either. He knows her position on it. Please check your facts or your blog will become as bad as nj.com. Thank you, Ruth Glicklich."

So, thank you to Ruth for the correction. Sorry about the mistake. Here's the rest of the original post.]

I leave it to Ms. Uptegrove to articulate her full position on the ordinance in any public forum she chooses, especially during a debate – if the candidates have a debate before the November 6 election, and I understand there’s some effort to put such a debate event together.

But she has expressed general reservations about the ordinance to me in one-to-one conversations, so linking her to the Ordinance is not an accurate characterization of her position.

Second, the Ordinance is not anti-business.

The ordinance is anti-business-exploitation-of-the-Borough-of-North-Plainfield, and its main purpose is to establish that property rights are not the only important rights that need to be considered and protected in local land development discussions and public decisions.

Community rights – to things like democratic self-governance; clean air, water, soil; healthy forests, flora, fauna, wetlands and streams; historic character and sense of place and community; reasonably free-flowing traffic – are as, if not more, important than property rights, deserve explicit protections under the law, and must be protected in government decision-making processes and outcomes.

If the state and federal government won’t enshrine those protections in the law, and they currently don’t, then citizens and local government must, under our authority as the People from whom all legitimate power flows.

If any of those community rights were adequately protected under current laws, we wouldn’t even need the Corporate Land Development and Local Self-Governance Ordinance, because our Borough officials would already have all the authority, power and incentives needed to fully protect those aspects of the public good.

It may be that more power for communities means less power (and less profit) for corporations, but it doesn’t mean no power or profit at all for corporations.

It means our community interests matter in a real way, influence public decisions in a real way, and can’t be rolled over willy-nilly in the corporate pursuit of the “almighty dollar.”

There are a lot of materials at this blog and all over the Internet, and in libraries and bookstores about these complex problems.

My hope is that, before anyone passes judgement or spreads rumors about what we’re up to, they’ll take the time to learn as much as possible about the relationship between corporate structures of power and democratic structures of power in America throughout our history up to the present.

I’m still educating myself about these things, and will continue to do so, because it’s an enormous subject.

But my provisional understanding is that something is way out of whack when corporations can bully a town into doing things that are damaging to the town, and that towns need to fight back, through things like the ordinance and all the other strategies being vigorously pursued by regular people all over America.

I welcome honest, fact-based, researched, thoughtful debate – like the questions and arguments posed by Bill here at this blog and in some of the conversations I’ve had with other people.

But the rumors are not helping anyone understand the situation better and prepare to take more responsibilty for the future of our much-beloved hometown.

So I’ll address the rumors as I hear about them and have time to address them, and keep hoping people will look behind the rumors to make up their own minds using the wealth of materials available for self-education and building community understanding and empowerment.

Records Round-Up

Last updated 1/28/07
 

To further support public knowledge of local public issues, here are some lists of documents we have, documents we need, etc. If you want to have a look at any of the ones we have, let me know. If you have other documents people might find useful, make a copy for our growing public documents library. If there are other documents you want, file an OPRA request with the Borough Clerk.

DOCUMENTS THAT NPCCR HAS, OR WILL SOON HAVE, AVAILABLE FOR CITIZEN REVIEW:

1) Financial Statements and Supplementary Data and Information for FY Ended 12/31/04 and 12/31/05 with report of independent auditors (150 pp.)

2) Financial Statements and Supplementary Data and Information for FY ended 12/31/03 and 12/31/04 with report of independent auditors (150 pp.)

3) 2007 Municipal Budget, approved by the Council March 12, 2007 (44 pp.) with Revenue and Appropriation Summary sheet (1 pp.)

4) Excel spreadsheet of Property Maintenance Violations investigated by Department of Public Works/Zoning Officer between approximately January and July 2007, showing address, violation, violation notices issued, summonses issued and, for a limited number of violations, “abatement” status. (18 pp.)

5) Original deed of transfer for 1938 sale of Villa Maria buildings and land from Justice & Mary Cooley to Congregation of the Holy Child Jesus. (3 pp.)

6) Real Property Exemption for Nonprofit Organizations summary report by David Wolfe, Chair of the Real Property Tax Practice and Procedure Committee of the NJSBA Taxation Section. (6 pp.)

7) Original 1935 Nonprofit Charter for the Congregation of the Holy Child Jesus (3 pp.)

8)Revised 1993 Nonprofit Charter for the Congregation of the Holy Child Jesus (4 pp.)

9) New Jersey State Business Gateway Service Corporate and Business Information Report showing Department of Revenue suspension of nonprofit status effective 1/16/2005 (2 pp.)

10) Draft Shade Tree Commission Ordinance from February 2005, establishing Borough authority to grant or deny permits to individuals seeking to destroy health shade trees within the Borough. (12 pp.)

11) Somerset County Tax Board Sheet of Aggregates, Table of Aggregates of Taxable and Exempt Property within North Plainfield for 1946, 1947, 1948, 1949, 1951, 1953, 1958, 1959, 1960, 1961, 1963, 1964, 1965, 1966, 1967, 1968, 1970, 1971

12) Somerset County Tax Tables showing tax rates for all 21 SC municipalities, arranged by type of tax (i.e. county, county library, district school, regional school, municipal, open space, etc.) 1970 – 2002.

13) Two separate appraisals of Villa Maria parcel, conducted in approximately 2003 or 2004, yielding “fair market values” of $6 million to $9 million under current R-2 (single family homes on small lots) zoning.

14) Open Public Records Act request form (2 pp.)

15) Guide to Open Public Records Act (2 pp.)

16) February 20, 1996 Master Plan Re-Examination (Approximately 75 pp.)

17) October 20, 2002 Master Plan (6 pp. No signature page included; document may be incomplete.)

18) Address and Phone Contact List of Medical Supplies, Drug and Pharmaceutical Corporations with Chief Offices in NJ (3 pp.)

19) Bertin Engineering Traffic Study of Villa Maria condo impact, Jan. 2007, revised June 2007. (44 pp)

20) Dolan & Dean Consulting Engineers Traffic Engineering and Site Plan Review of Villa Maria condo impact, July 2007 (5 pp.)

21) School District Budget Statement 2007-2008 (10 pp.)

22) School District 2007-2008 Budget Presentation Powerpoint – (7 pp.)

DOCUMENTS NPCCR HAS REQUESTED FROM THE BOROUGH, WHICH CONTROLS THESE DOCUMENTS:

1) Borough copy of the option-to-buy contract between the Villa Maria nuns and developer Robert McNerney of Watchung Hills at North Plainfield LLC.

2) Executive session minutes related to Borough’s Villa Maria-related litigation, redacted if necessary to protect individual identities but not the substance of the discussions.

3) Correspondence, notes, drafts, etc. between Borough officials and/or attorneys, Villa Maria nuns’ attorneys, developer attorneys, on the ARC ordinance.

4) Environmental studies and/or reports related to the ecology and/or toxicity of Villa Maria buildings and grounds.

5) Borough copies of Borough attorney notes, drafts, and final settlement agreements etc., for the settlement of the nuns’ 2003 COAH lawsuit regarding affordable housing.

6) Other records that we may not yet even know exist, but that are in the Borough’s control and are related to terms, conditions, restrictions or other limitations or requirements for Villa Maria development, which may have unlawfully relinquished Borough officials’ authority to properly protect the public good of the Borough’s residents.

1974 Master Plan.

1982 Master Plan Re-Examination.

1988 Master Plan Re-Examination

1996 Master Plan Re-Examination

2002 Master Plan

FORMS RELATED TO CITIZEN RIGHTS/GOVERNMENT ACCOUNTABILITY, AVAILABLE AT BOROUGH CLERK’S DESK OR ONLINE:

1) Property Maintenance Complaint Form

2) Open Public Records Act Request Form

3) Government Records Council Denial of Access Complaint Form

DOCUMENTS NPCCR HAS NOT YET SPECIFICALLY REQUESTED THAT WOULD BE USEFUL TO HAVE:

1) Any other prior appraisals of Villa Maria parcel that have been or could be used to establish a “fair market value.”

4) Documents related to identifying shareholders in any Real Estate Investment Trust or corporate structure behind Robert McNerney’s Watchung Hills at North Plainfield LLC.

DOCUMENTS THAT MAY NOT EXIST BECAUSE NO BOROUGH OFFICIAL HAS YET REQUESTED, ORDERED, NOTIFIED, FILED, APPLIED FOR SUCH DOCUMENTS.

NJ Department of Environmental Protection environmental impact study and/or survey for Villa Maria buildings, grounds, shade tree, plant and wildlife population.

North Plainfield Environmental or Natural Resource Inventory ( Does not exist – Dr. Harry Allen of Environmental Commission confirmed this by e-mail letter in late July 2007.)

Government Records Council – Villa Maria Appeal

Denial of Access Complaint form is here.

I mailed the one about Villa Maria documents yesterday:

Villa Maria GRC Appeal

Avoiding Lawsuits

Draft letter setting out the legal arguments against the Borough Clerk’s recent denial of the proposed ordinance. I don’t want to file a formal Complaint in Superior Court, so I’m going to deliver the draft to the Mayor and Council tomorrow, with a letter urging the Borough to rescind the denial and continue certifying the petition signatures and moving the initiative process along toward a community vote.

_______________________________

October 11, 2007

New Jersey Superior Court
Somerset County Civil Division
40 North Bridge Street
Somerville, NJ 08876

Re: NP Citizens for Community Rights v. Borough of North Plainfield
Complaint and Request for Injunction

Dear Judge—:

On September 19, 2007, Plaintiff submitted a petition package to North Plainfield Borough Clerk Gloria Pfleuger, under the initiative provisions of the Faulkner Act, NJSA 40:69A184 et seq, seeking certification of petition signatures gathered in support of the “Borough of North Plainfield Corporate Land Development and Local Self-Government Ordinance,” attached hereto as Exhibit A.

By letter October 9, 2007, attached hereto as Exhibit B, Mrs. Pfleuger, at the direction of Borough Attorney Eric Bernstein, denied the petition, alleging:

1) That the proposed ordinance was a “zoning” ordinance, and thus precluded from initiative by NJSA 40:55D-63(b);

2) That the proposed Ordinance, a binding ordinance proposed by the citizens via initiative under the Faulkner Act (NJSA 40:69A-184 et seq), violates the terms of N.J.S.A. 19:37-1 et seq., which statute governs situations in which “the governing body of any municipality…desires to ascertain the sentiment of the legal voters…” through a non-binding referendum; and

3) That the Ordinance “contains an unlawful proposition over which the Borough Council does not have the power to act.”

On behalf of the members of the Committee of Petitioners, and the North Plainfield Citizens for Community Rights, a nonpartisan group of North Plainfield residents intent on empowering free and equal citizens to solve local problems through open public discussion and use of our democratic right to self-governance, I hereby request an injunction, ordering the Borough to rescind the denial and proceed with certification of the petition signatures and placement of the proposed Ordinance on the ballot for the voters of the municipality to consider.

As a threshold matter, although the New Jersey Legislature is moving toward adoption of a statute to severely restrict the citizen power of initiative, S1177, which has passed the Senate, and A3436, which emerged from Assembly committee in March 2007, Borough Attorney Bernstein does not yet have the authority to independently determine the legal sufficiency of initiated ordinance and referendum petitions. We would argue that, should the House adopt A3436 and Governor Corzine sign it into law, that law will be unconstitutional prior restraint on the citizen right to self-government, and we will continue to watch the progress of the bill carefully.

However, even without statutory authority, Mr. Bernstein has seen fit to pass pre-emptive judgment on the proposed ordinance. In his analysis, he has failed to grasp the facts of the matter, and has drawn nonsensical conclusions of law, as follows.

POINT I: The Municipal Land Use Law precludes initiative-passed zoning ordinance. The Corporate Land Development and Local Self-Government Ordinance is not a zoning ordinance. Therefore, its’ placement on the ballot via initiative under the Faulkner Act is not precluded by the Municipal Land Use Law.

Ms. Pfleuger, at Mr. Bernstein’s direction, wrote:

“N.J.S.A. 40:55D-62(b) specifically states that ‘no zoning ordinance and no amendment or revision to any zoning ordinance shall be submitted to or adopted by initiative or referendum.’ You and your colleagues cannot submit a petition for a zoning ordinance under N.J.S.A. 40:69A-184.”

Both statements are true.

However, the proposed Ordinance submitted to the Borough Clerk is not a zoning ordinance. It is an ordinance asserting and protecting the primacy of the Constitutional and civil rights of North Plainfield residents, which rights are currently not fully safeguarded by state and federal law.

NJSA 40:55D-1, et seq, does not define “zoning.” However, inferring from the definition provided for “Zoning permit,” zoning may be construed as the “use or the erection, construction, reconstruction, alteration, conversion or installation of a structure or building.” (NJSA 40:55D-7) Black’s Law Dictionary defines a “zoning ordinance” as one that “regulates the use to which land within various parts of the city may be put.” Black’s Law Dictionary (7th Ed.), at 1613.

In other words, municipal zoning ordinances – as passed by local Planning Boards under the authority left to them by the NJ Legislature under the Municipal Land Use Law – govern use: what types of structures can be built, and where within the municipality such buildings may be constructed.

Our proposed ordinance lies upstream of zoning, governing who may build within the Borough of North Plainfield, restricting the lawful agents or actors to members of:

“…family land development corporation or syndicates [in which] at least one of the family members…shall have been a permanent Borough resident for at least 2 years, actively engaged in the day-to-day labor and management of land development within the Borough of North Plainfield. Day-to-day labor and management shall require both daily and routine substantial physical exertion and administration…”

To the extent that future corporate claimants may argue discriminatory intent and result, our proposed Ordinance states:

“No corporation doing business within Borough of North Plainfield shall be recognized as a “person” under the United States or New Jersey Constitutions, or laws of the United States or New Jersey; and no corporation shall be afforded the protections of the Contracts Clause or Commerce Clause of the United States Constitution, or similar provisions found within the New Jersey Constitution, within the Borough of North Plainfield nor shall those corporations possess the authority to enforce State or federal preemptive law against the people of North Plainfield Borough. Within the Borough of North Plainfield, corporate claims to “future lost profits” shall not be considered property interests under the law, and thus, shall not be recoverable by corporations seeking those damages.”

If the people of North Plainfield adopt the proposed Ordinance, they will do so on the understanding that more than a century of U.S. statutory and case law uphold Constitutional and civil rights of corporations as fictional legal persons, at devastating cost to the Constitutional and civil rights of natural persons such as our Borough residents, and that it is our absolute and inalienable right, as free and equal citizens in a self-governing democracy, to overturn those precedents and repudiate that legal “fiction” within our municipal borders, in the interests of self-preservation. If we adopt the law, corporations will not have legal standing to seek vindication of their Constitutional and civil rights, because they will not be considered legal persons within our Borough.

In sum: the Municipal Land Use Law precludes initiative-passed zoning laws. The Corporate Land Development and Local Self-Government Ordinance is not a zoning law. Therefore, its placement on the ballot via initiative under the Faulkner Act is not precluded by the Municipal Land Use Law.

POINT II – Citizens’ initiatives to pass binding local laws are governed by the Faulkner Act (NJSA 40:69A-184 et seq), while governing body “ascertainment” of the “sentiment” of voters via non-binding referendum is governed by NJSA 19:37-1 et seq. We, the Petitioners, are citizens, not the local governing body, and we intend to pass a binding local ordinance; we are not “ascertaining sentiments.”

Ms. Pfleuger, again at Mr. Bernstein’s direction, wrote:

“The proposed ordinance is further not permitted by the public question statute, N.J.S.A. 19:37-1 et seq., because it is not a non-binding referendum.”

Under the Faulkner Act, “If a majority of the qualified electors voting on the proposed ordinance shall vote in favor thereof, such ordinance shall thereupon become a valid and binding ordinance of the municipality and be published as in the case of other ordinances.” (NJSA 40:69A-196)

NJSA 19:37-1 et seq, however, provide that a “governing body” or citizen petitioners equal to 10% of the voters at the last general election may, if they desire, “ascertain the sentiment of the legal voters of the municipality…upon any question or policy pertaining to the government or internal affairs thereof” by placing a “proposition” on the ballot…Further, the outcome of such a referendum “shall not bind the governing body from which the ordinance or resolution emanated, nor be taken or construed as other than an expression of sentiment by the voters, to be followed or disregarded by the governing body in its discretion.”

In sum, we, the Petitioners, are citizens, not the local governing body. We intend to pass a binding local ordinance, not “ascertain sentiments” or pass non-binding, disregardable resolutions on prior governing body acts. We have chosen to pursue our goals through the citizen-directed Faulkner initiative process, not the governing-body-directed referendum provisions of NJSA 19:37-1.

POINT III – Our initiative cannot be construed as “unlawful” or as “a proposition over which the Borough Council does not have the power to act,” because under the New Jersey Constitution, Article I, §2A, “All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.”

Ms. Pflueger, again at Mr. Bernstein’s direction, wrote that the proposed Ordinance:

“…contains an unlawful proposition over which the Borough Council does not have the power to act.”

As citizens and members of the Committee of Petitioners, we firmly maintain that the founding principles and the laws of the United States and the State of New Jersey are intended to uncompromisingly uphold our right, as free human beings, to govern their own affairs so as to best protect our lives, liberties and pursuit of happiness, our health, safety and welfare, and, to the best of our ability, those of our current neighbors and our descendants.

Therefore, we emphatically deny that anything in the Constitution or laws of the United States and of New Jersey does or could render “unlawful” or “unauthorized” our acts to publicly and democratically adopt a new law. As born or naturalized American citizens, we are always and irrevocably authorized to govern ourselves.

CONCLUSION:

In light of the foregoing arguments, I request, on behalf of the Committee of Petitioners and all the petition-signers and voters of North Plainfield, an injunction ordering that the Borough rescind the October 9, 2007 denial and that the Borough Clerk to complete the signature validation process and certify the results, so that we may continue to exercise our right of initiative and move toward adopting a new law for the benefit and protection of present and future residents of the Borough of North Plainfield.

This Complaint is being filed pro se.

Sincerely,

Katherine Watt, Member
Committee of Petitioners
“Borough of North Plainfield Corporate Land Development and Local Self-Government Ordinance”

UPDATE: Link to CELDF Model Brief, mentioned in my comment below, is here.