This letter to the editor was originally published in The Westfield Leader on January 11, 2024
Among the first acts of the newly elected Westfield Council members was an attempt to remove Thomas Jardim as the Town Attorney, claiming that he had provided “bad advice” about whether approval of the One Westfield Place redevelopment project could have legally been the subject of a “non-binding referendum.” (The ad hominem comments about Mr. Jardim are, perhaps, a subject for another day, but the incivility does not bode well.) No matter how often it gets refuted, the referendum issue arises, zombie-like.
The OWP redevelopment will take place under New Jersey’s Local Redevelopment and Housing Act. Once property is designated for redevelopment under the LRHA, any project constructed pursuant to the designation cannot legally be the subject of a referendum. The Westfield Council designated the train-station lot for redevelopment under the LRHA during the McDermott Administration, well over twenty years ago; decades before Mr. Jardim became Town Attorney.
The LRHA says: “No ordinance, amendment or revision of an ordinance, or resolution under this act shall be submitted to or adopted by initiative or referendum, notwithstanding any other law to the contrary.” Despite this unequivocal prohibition, some believe that a “non-binding referendum” on OWP could have been put on the ballot. The law plainly provides otherwise.
Proponents of a “non-binding referendum” misinterpret an inapposite 1994 New Jersey Supreme Court case in which Point Pleasant was contemplating – but had not adopted – a change to its zoning ordinance under the Municipal Land Use Law. The Court defined a “non-binding referendum” as one that “authorizes a governing body to ascertain public sentiment before that body acts.” “In contrast,” the Court said, a binding referendum is one that “reviews already-taken governmental action and constitutes final voter acceptance or rejection of that action.” The Court held that the MLUL did not prohibit a non-binding referendum because Point Pleasant had “not yet acted.” Since Westfield has already acted under the LRHA, a referendum cannot, by definition, be “non-binding.”
Unlike the LRHA, the MLUL at issue in the Point Pleasant case does not contain an unequivocal prohibition “notwithstanding any other law to the contrary.” In 2015, the New Jersey Supreme Court reviewed a case in which a West Orange community group had petitioned to put part of an LRHA project to a referendum. The Township Clerk rejected the petition because it violated the LRHA’s referendum-prohibition.
On appeal, the Supreme Court said: “The Legislature determines how much direct democracy through referendum should be conferred on the voters of a municipality.” It held: “The Legislature has unambiguously decreed that an ordinance enacted under the Local Redevelopment and Housing Law is not subject to approval at the ballot box.” The Court affirmed the Clerk’s rejection of the referendum petition.
Mr. Jardim’s advice also conforms to the unanimous opinion of the Town’s highly regarded outside redevelopment lawyers. There are numerous ways to voice public opinion on a complex LRHA redevelopment project. But the Legislature has unambiguously pronounced – and the Supreme Court has affirmed – that a referendum is not one of them.
Carl A. Salisbury