NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5731-11T4

HONORABLE DANA L. REDD, Camden

City Mayor, and HONORABLE

FRANCISCO MORAN, Camden City

Council President,

Plaintiffs-Respondents,

v.

VANCE BOWMAN, LARRY GILLIAMS,

EULISIS DELGADO, MARY I. CORTES,

and ROBERT DAVIS, individually

and collectively as the Committee

of Petitioners,

Defendants-Appellants,

and

LUIS PASTORIZA, Clerk of the City of 

Camden, JOSEPH RIPA, Clerk of Camden 

County; PHYLLIS PEARL, Camden County 

Superintendent of Elections; and the 

CAMDEN COUNTY BOARD OF ELECTIONS,

Defendants-Respondents,

and

CAMDEN CITY COUNCIL,

Defendant.

_____________________________________________________

Argued June 4, 2013 – Decided

Before Judges Messano, Lihotz and Ostrer.

APPROVED FOR PUBLICATION

October 29, 2013

APPELLATE DIVISION

October 29, 2013
2 A-5731-11T4

On appeal from the Superior Court of New 

Jersey, Law Division, Camden County, Docket 

No. L-2019-12.

Anthony Valenti argued the cause for 

appellants (Caplan, Valenti & Murray, PC, 

attorneys; Mr. Valenti and Karen M. Murray, 

on the brief).

John C. Eastlack, Jr. argued the cause for 

respondent Honorable Dana L. Redd, Camden 

City Mayor (Weir & Partners, L.L.P., 

attorneys; Mr. Eastlack, on the brief).

Jay J. Blumberg argued the cause for 

respondent Honorable Francisco Moran, Camden 

City Council President (Law Offices of Jay 

J. Blumberg, attorneys; Mr. Blumberg, on the 

brief).

The opinion of the court was delivered by

MESSANO, P.J.A.D.

The government of the City of Camden (Camden) operates 

pursuant to the Optional Municipal Charter Law, N.J.S.A. 40:69A1 to -210, commonly known as the Faulkner Act (or the Act). The 

voters in a Faulkner Act municipality "may propose any ordinance 

and may adopt or reject the same at the polls, such power being 

known as the initiative . . . ." N.J.S.A. 40:69A-184. They 

"also have the power of referendum[,] which is the power to 

approve or reject at the polls any ordinance submitted by the 

council to the voters or any ordinance passed by the council, 

against which a referendum petition has been filed . . . ." 

N.J.S.A. 40:69A-185.
3 A-5731-11T4

We have said that "[t]he 'salutary purposes' of both 

initiative and referendum include 'arousing public interest' and 

'placing in the hands of the voters . . . direct means of 

controlling proposed or already enacted municipal legislation 

and also of accomplishing the enactment of legislation which has 

neither been proposed nor adopted.'" City of Ocean City v. 

Somerville, 403 N.J. Super. 345, 352 (App. Div. 2008) (quoting 

Maese v. Snowden, 148 N.J. Super. 7, 11 (App. Div. 1977)

(citations omitted)). The "[t]wo statutes ensure that the 

voters have that right both before and after the council adopts 

an ordinance on any particular subject." Ibid. (citations 

omitted). 

This appeal involves an initiative petition and proposed 

ordinance filed with the Camden city clerk, defendant Luis 

Pastoriza, by defendants Vance Bowman, Larry Gilliams, Eulisis 

Delgado, Mary I. Cortes and Robert Davis, collectively known as 

the Committee of Petitioners (the Committee). The ordinance was 

proposed in response to Camden's decision to disband its 

municipal police department and join a newly-formed county 

police force. Plaintiffs, Mayor Dana L. Redd and City Council 

president Francisco Moran, filed a complaint seeking to declare 

the petition-initiated ordinance invalid before it was submitted 

to the City Council or placed on any ballot. 
4 A-5731-11T4

The Law Division judge determined that the proposed 

ordinance did not "unduly restrict" Camden's "statutory 

authority" under N.J.S.A. 40A:14-118, which grants every 

municipality the right to "create and establish" a police force. 

However, the judge entered restraints "prohibiting" the city 

clerk "from accepting the petition and proposed ordinance for 

filing" because the proposed ordinance "create[d] an undue 

restraint on the future exercise of municipal legislative 

power," was "invalid," and could not "be placed on the ballot 

for voters to act upon." The judge specifically refrained from 

considering whether the proposed ordinance was pre-empted by the 

Municipal Rehabilitation and Economic Recovery Act, N.J.S.A.

52:27BBB-1 to -75 (MRERA), and the Special Municipal Aid Act, 

N.J.S.A. 52:27D-118.24 to -118.31 (SMAA). The Committee filed 

this appeal.

We have considered the arguments raised in light of the 

record and applicable legal standards. We reverse and remand 

for further proceedings consistent with this opinion.

I

The facts are not disputed. Camden's existing municipal 

police department was established and organized by ordinance as 

authorized by N.J.S.A. 40A:14-118. On June 17, 2008, Camden 

entered into a Memorandum of Understanding (MOU) with the 
5 A-5731-11T4

Division of Local Government Services (DLGS) in the Department 

of Community Affairs (DCA) for the provision of $61.5 million in 

aid pursuant to the SMAA. The MOU required Camden to accept 

certain oversight measures and other conditions imposed by the 

State. Camden entered into similar MOUs in order to receive 

additional aid in 2009 and 2010. 

Nevertheless, Camden's financial woes continued. On June 

23, 2010, DLGS published qualification standards for the 

"Transitional Aid to Localities" program (TAL), which superseded

prior programs, including the SMAA. As declared by DLGS, TAL 

was intended for "municipalities that have the most severe 

structural financial problems," "despite aggressive cost 

reductions and service modifications," and need additional 

assistance "to mitigate significant property tax increases." 

The standards emphasized "labor cost reductions and changes in 

service delivery" as "preconditions for receipt of aid." Such 

reductions and changes would require the elimination of 

"redundant or excessive services." A municipality's application 

for TAL funding needed to demonstrate cost reductions compared 

to its 2009 budget, including "documented efforts to share 

public safety dispatch, code enforcement, public health 

services, and other services offered by neighboring 

municipalities, area boards of education, local authorities, or 
6 A-5731-11T4

the county, if those costs are less than the current full cost 

of providing equivalent service." 

Camden sought $54 million in TAL funding for 2011. The 

application painted a dire picture of increasing costs and 

projected budget shortfalls, as well as the anticipated adverse 

impact that reductions in Camden's police force would have upon 

the acknowledged historic, and intractable, violent crime rate 

in the city. Camden agreed to enter into an MOU by which DLGS 

would have outside "management, financial, and operational 

specialists" assess municipal operations, and the city would 

"[i]mplement actions as recommended . . . ." On November 24, 

2010, DLGS awarded Camden $69 million in TAL funding for 2011,

and, on December 15, Camden and DLGS entered into a new MOU for 

2011. The MOU required Camden to reduce staffing further for 

2012, and make other efforts to reduce costs, maximize recurring 

revenue, and eliminate the need for TAL funding within four 

years. Camden continued to negotiate collective bargaining 

agreements with those unions representing its police department, 

which had experienced a significant reduction in force. Camden 

came under some degree of DLGS oversight and control, although 

it is unclear from the record its nature and extent. 

 In a February 15, 2011 notice, DCA clarified that the 

receipt of TAL funding required a municipality to show it "ha[d] 
7 A-5731-11T4

moved beyond planning for operational efficiency and ha[d] begun 

to reduce costs." DCA "expect[ed] that the municipality . . . 

[had] engaged with its unions and non-union employees to 

effectuate savings through reduced salary costs, reduced 

staffing levels, modified work rules, modified controllable 

benefits costs, or other efforts to mitigate" salary and wage 

costs. Participation would require the municipality to 

"[s]ubmit[] to broad State controls over hiring, procurement, 

and other matters[,]" and "additional fiscal control measures as 

may be directed by [DLGS]." 

In June 2011, Camden issued "Camden Forward, the Transition 

Plan for 2011-2015." While recognizing the intended use of nonTAL funding to rehire laid-off police officers as a short-term 

measure, the plan noted Camden's intention to explore 

"regionalized or shared services for police and fire services as 

a long-term solution for public safety and the fiscal challenges 

confronting the City."

On August 9, 2011, the City Council passed a resolution 

authorizing Camden to enter into an MOU with DCA and the County 

of Camden (the County) "for the purpose of preparing a plan for 

the creation of the Camden County Police Department," a new 

countywide agency. On August 29, 2011, the MOU was executed by 

plaintiffs, County officials and the Director of DLGS. Under 
8 A-5731-11T4

the terms of the MOU, Camden agreed to "act as a co-applicant on 

submittals and filings . . . with respect to the creation of the 

Camden County Police Department." The County would act as the 

"lead agency" in forming the County police department which 

would be "available to all municipalities within the County on a 

voluntary basis." 

On the same day, Camden requested $67.5 million in TAL 

funding for 2012. The application represented that the 2012 

budget anticipated an agreement with the County "under which 

[Camden] would pay $14,000,000 for police services." On October 

7, DLGS advised Camden that it would receive $61.4 million in 

TAL funding for 2012. 

On December 27, 2011, the City Council adopted a resolution 

immediately implementing the MOU regarding formation of a County 

police department. The resolution noted that the County police 

department would include a Camden Metro Division "to provide for 

public safety and law enforcement in . . . Camden," while 

"requiring the County Police Department to offer employment to 

qualified officers previously employed" by the Camden police 

department. Camden's police department would be dissolved upon 

the creation of the Camden Metro Division. On January 26, 2012, 

the County adopted a resolution establishing the county police 

department. 
9 A-5731-11T4

On April 10, 2012, the Committee submitted a petition 

seeking consideration of an initiative ordinance amending 

Camden's municipal code to read: 

A. There shall be created and maintained 

in continued existence, in, for and by the 

city of Camden, its own Police Department 

which shall remain the police department for 

the City of Camden and which shall consist 

of a Police Director, a Chief of Police and 

members and officers as shall be deemed

necessary by the governing body of the City 

of Camden which shall, from time to time, 

determine the number of persons, including, 

without limitation, temporary officers and 

members in an emergency, to be appointed to 

these positions, together with their 

compensation, all as provided for under 

N.J.S.A. 40A:14-118.

B. The City of Camden shall not disband 

its Police Department pursuant to the 

creation of any county wide Police 

Department established by or for the County 

of Camden and shall not participate or join 

in the creation of any such police 

department established by or for the County 

of Camden, nor participate in any 

consolidation of or regionalization of 

police services sought to be created by any 

establishment of a county wide police 

department, and shall instead continue to 

maintain its own police department. 

Pastoriza reviewed the petition, and, on April 20, concluded it 

was legally sufficient. See N.J.S.A. 40:69A-187 (requiring all 

initiative and referendum petitions to be filed with the 

municipal clerk who "shall determine whether . . . the petition 

has a proper statement of the circulator and . . . is signed by 
10 A-5731-11T4

a sufficient number of qualified voters"). Pastoriza advised 

the Committee, plaintiffs and other interested parties that he 

would "move the certified petition forward as an ordinance on 

[second] reading and public hearing [at] the next regularly 

scheduled City Council meeting (May 8[], 2012) for City Council 

consideration and action as required by law."1 

Plaintiffs filed their complaint on May 2, 2012, naming 

the Committee and its individual members, the City Council, 

Pastoriza, and various County officials as defendants. 

Plaintiffs sought a declaration that the "proposed petitioninitiated ordinance [was] null and void," and injunctive relief, 

specifically enjoining Pastoriza from submitting the ordinance 

to the City Council and the City Council from considering it. 

The Committee answered and asserted a counterclaim and 

crossclaim, seeking a declaration that the ordinance was valid, 

requiring its submission to the City Council and, if rejected, 

its placement on the ballot for consideration by the voters.

The judge granted plaintiffs temporary restraints, and the 

parties stipulated to the dismissal of the complaint as to the 

 

1 N.J.S.A. 40:69A-190 provides: "Upon a finding by the municipal 

clerk that any petition . . . is sufficient, the clerk shall 

submit the same to the municipal council without delay. An 

initiative ordinance so submitted shall be deemed to have had 

first reading and provision shall be made for a public hearing."
11 A-5731-11T4

City Council with prejudice. Following a hearing on June 11, 

2012, the judge placed his oral decision on the record and 

entered the order under review. 

II

The Committee claims that the proposed ordinance was a 

valid exercise of the initiative powers granted by the Faulkner 

Act, and the judge erred by concluding the proposed ordinance 

impermissibly restrained future municipal legislation. The 

Committee also asserts that the initiative ordinance was not 

prohibited by N.J.S.A. 40A:14-118, nor preempted by the 

statutory regimes impacting local finance and budgeting in 

Camden.2

A.

We begin by noting that "a question of statutory 

interpretation[] . . . is a purely legal issue and, thus, we owe 

no deference to the trial court's legal conclusions." In re 

Trenton Ordinance 09-02, 201 N.J. 349, 358 (2010) (citing 

Manalapan Realty v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 

(1995)). "'Our task . . . is to determine and effectuate the 

 

2 The judge concluded the ordinance did not violate N.J.S.A.

40A:14-118. Plaintiffs have not cross-appealed from that 

determination. We therefore need not consider the Committee's 

argument in this regard. 
12 A-5731-11T4

Legislature's intent.'" Ibid. (quoting Bosland v. Warnock Dodge 

Inc., 197 N.J. 543, 553 (2009)).

As noted, N.J.S.A. 40:69A-184 allows the voters in a 

Faulkner Act municipality to "propose any ordinance and . . . 

adopt or reject the same at the polls . . . ." (Emphasis 

added). The Faulkner Act "does not limit the power of 

initiative to only those areas of municipal concern which have 

never been the subject of favorable council action." Smith v. 

Twp. of Livingston, 106 N.J. Super. 444, 450 (Ch. Div.), aff'd 

o.b., 54 N.J. 525 (1969). Instead, it lets voters seek "to 

amend a long-standing ordinance" when "there is either a change 

in the circumstances or in the will of the people." Ibid. 

"N.J.S.A. 40:69A-184 . . . by its very terms admits of no 

qualification." Ocean City, supra, 403 N.J. Super. at 357. 

Yet, while the express language permitting the proposal by 

initiative of "'any ordinance' means 'all ordinances,' . . . no 

one disputes that the power of initiative is not without 

limitation." Ibid. (citing In Re Ordinance 04-75, 192 N.J. 446, 

454, 460-61 (2007)). "[T]here are certain ordinances . . . 

which are simply not subject to initiative and referendum 

because of the subject matter involved or because they are 

statutorily excluded from the initiative and referendum 

provisions." Id. at 359 (citations omitted).
13 A-5731-11T4

For example, in In re Ordinance 04-75, supra, 192 N.J. at 

465, the Court recognized that the referendum provision of the 

Faulkner Act "contains at least a partial, if not total, 

exception to the referendum rule for municipal budgets." The 

Court also set forth a non-exhaustive list of statutes that 

exempt ordinances enacted thereunder from the referendum 

provisions of the Act. Id. at 466-67. "That sampling clearly 

establishes that the Legislature has determined, on multiple 

occasions, those municipal matters that should not be called 

before the voters in a referendum." Id. at 467. 

"But even where the legislative directive has not been as 

express or precise, limitations on initiative authority may be 

inferred or implied from comprehensive State supervision, 

regulation or occupation of the field." Ocean City, supra, 403 

N.J. Super. at 360. We need not repeat the examples of this 

proposition we previously cited in Ocean City. Id. at 360-70. 

In declaring the initiative ordinance invalid in this case, 

the Law Division judge did not rely upon either the express 

language of the Faulkner Act or some other statute, or the 

"comprehensive State supervision, regulation or occupation of 

the field." Id. at 360. Indeed, he specifically declined to 

address whether the SMAA or MRERA preempted the initiativegenerated ordinance. Instead, the judge concluded the ordinance 
14 A-5731-11T4

was invalid because it "create[d] an undue restraint on the 

future exercise of municipal legislative power." We now 

consider that issue.

B.

In Ocean City, supra, we recognized another limit "on the 

power of initiative [that] stems from the settled principle that 

a governing body cannot, absent specific legislative permission, 

divest its successors of legislative power." Id. at 359 (citing 

Maese, supra, 148 N.J. Super. at 13 (quoting McCrink v. West 

Orange, 85 N.J. Super. 86, 91 (App. Div. 1964))); (citing 4 

McQuillin on Municipal Corporations § 13.03(b) (3d rev. 1968)) 

(emphasis added); see also N.J. Educ. Ass'n v. State, 412 N.J. 

Super. 192, 214-15 (App. Div.), certif. denied, 202 N.J. 347 

(2010) ("[A]bsent specific legislative permission, a governing 

body cannot divest its successors of legislative power."). 

"It stands to reason . . . that if a governing body cannot by 

ordinance presently adopted restrain the future exercise of 

municipal legislative power, neither may the citizenry through 

initiative or referendum create an ordinance divesting the 

municipal governing body of that power." Ocean City, supra, 403 

N.J. Super. at 359.

In McCrink, supra, 85 N.J. Super. at 88-89, an initiative 

ordinance sought to fix maximum salary ranges for fire personnel 
15 A-5731-11T4

that could not be raised for two calendar years. We declared 

the "ordinance [was], on its face, defective[,]" noting "[i]t is 

fundamental that a governing body could not, by an ordinance 

presently adopted, place a restraint upon the future exercise of 

municipal legislative power." Id. at 91. 

In Maese, supra, an initiative ordinance sought to prohibit 

the governing body or officials of the township "from committing 

or spending any public funds," "incurring any indebtedness" or 

"pledging or obligating public funds" to construct a municipal 

complex on township land. 148 N.J. Super. at 10. 

Relying on McCrink, supra, the trial judge concluded the 

"ordinance was invalid on its face 'because it acts as a 

restraint on all future actions, not only by this governing body 

but by any other governing body.'" Id. at 11. We affirmed, 

holding, 

[t]he invalidity of the proposed initiative 

ordinance . . . springs from an attempt to 

shackle, if not to completely immobilize, 

the governing body in connection with 

construction on the municipally-owned tract. 

Since the governing body itself could not 

enact such an ordinance, it follows from 

what has been said that the voters were 

likewise without that authority.

No governing body, certainly without 

specific legislative permission, may divest 

its successors of legislative power. 

[Id. at 13 (citing 4 McQuillin, supra, 

§13.03b at 477) (emphasis added).] 
16 A-5731-11T4

As the above discussion demonstrates, this restriction on 

the legislative power of voters in a Faulker Act municipality 

arose from a basic tenet of municipal corporate law, not the 

express language of the Faulkner Act or any other statute. 

"Although a council has the power, unless restricted by charter, 

to enact an ordinance to take effect after the expiration of the 

terms of office of its members, it cannot, by ordinance, divest 

its successor of legislative power . . . ." McQuillin on 

Municipal Corporations § 13:03.15 (3d Ed. 2011) (citing Ocean 

City, supra, and Maese, supra). However, as we recognized in 

Ocean City and Maese, an exception to the general rule exists 

when the Legislature specifically permits present legislative 

bodies to restrict the legislative power of their successors. 

Ocean City, supra, 403 N.J. Super. at 359; Maese, supra, 148 

N.J. Super. at 13.

C.

N.J.S.A. 40:48-1 provides that "[t]he governing body of

every municipality may make, amend, repeal and enforce 

ordinances . . . ." However, the Legislature has bestowed a 

unique characteristic on an ordinance passed by initiative.3 The 

 

3 As the subsequent discussion makes clear, we respectfully 

disagree with our colleagues who stated in Ocean City, supra,

403 N.J. Super. at 357-58, "ordinances passed by initiative are 

(continued)
17 A-5731-11T4

Faulkner Act specifically strips away the power of the governing 

body to repeal a validly-approved initiative ordinance and 

bestows that power solely on the voters.

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. No such ordinance shall be 

amended or repealed within [three] years 

immediately following the date of its 

adoption by the voters, except by a vote of 

the people. The council may, within [three]

years immediately following the date of 

adoption of the ordinance, submit a 

proposition for the repeal or amendment of 

that ordinance to the voters at any 

succeeding general election or regular 

municipal election. If the proposition 

submitted shall receive a majority of the 

votes cast at that election, the ordinance 

shall be repealed or amended accordingly. 

[N.J.S.A. 40:69A-196(a) (emphasis added).]

This highlighted provision was added to the Faulkner Act in 

1982, five years after our decision in Maese. See L. 1982, c. 

145, § 6 (eff. Sept. 28, 1982) (the Amendment). 

The Amendment also changed the terms of the Commission Form 

of Government Law, known as the Walsh Act, N.J.S.A. 40:70-1 to 

40:76-27, which theretofore had provided, without limitation, 

 

(continued)

subject to amendment or repeal in the same manner that 

ordinances passed by the governing body of a municipality are." 
18 A-5731-11T4

that any ordinance passed by initiative "shall not be repealed 

or amended except by a vote of the people." N.J.S.A. 40:74-18 

(1982). The Amendment added a similar three-year limit during 

which an initiative ordinance could not be repealed or amended 

in a Walsh Act municipality unless submitted to, and approved 

by, the voters. L. 1982, c. 145, §§ 16, 17. The Legislative 

statement accompanying the Amendment makes clear its purpose: 

"[T]o establish a uniform [three] year time limit within which a 

governing body may, solely by submission to the voters, amend or 

repeal an ordinance adopted by initiative . . . ." Bill 

Sponsor's Statement to S.763 (1982).

Prior to the Amendment, an ordinance approved by initiative 

in a Faulkner Act municipality "bec[a]me a valid and binding 

ordinance of the municipality and [would] be published as in the 

case of other ordinances." N.J.S.A. 40:69A-169 (1982). 

Presumably, like any other ordinance, it was subject to 

immediate repeal by the municipal governing body. Hence, 

application of a general principle of municipal corporate law to 

initiative ordinances – a present legislative body may not bind 

the hands of it successors — was logical. The voters could not 

restrict the legislative powers of a successor governing body 

any more than the present governing body could.
19 A-5731-11T4

However, through passage of the Amendment, the Legislature 

has given the voters in a Faulkner Act municipality the power to 

restrict the legislative actions of the present governing body

and its successor for a period of three years, which restriction 

may only be removed if the governing body returns the issue to 

the people for a vote. In other words, the Legislature has 

granted to the people "specific legislative permission," Maese, 

supra, 148 N.J. Super. at 13, to divest the governing body of 

its legislative power for a finite period of time, thereby 

creating an exception to the general rule that "[n]o governing 

body . . . may divest its successors of legislative power." 

Ibid. 

Given the legislative changes made to the Faulkner Act 

since Maese and McCrink were decided, those cases have limited 

vitality.4 Lest our opinion be read too broadly, we reiterate 

that the Faulkner Act's provisions only limit the governing 

body's right to repeal an initiative ordinance for three years, 

unless the voters choose otherwise. Because the issue is not 

 

4 We agree with an argument made by the Committee before the 

trial judge and on appeal, i.e., that the discussion in Ocean 

City of this judicially-imposed limit on the power of initiative 

was dicta. Our decision in that case turned squarely on the 

fact that the proposed ordinance impermissibly tread on the 

municipality's budgetary powers, and, hence, was not a permitted 

subject matter for initiative. See Ocean City, supra, 403 N.J. 

Super. at 363-70.
20 A-5731-11T4

before us, we need not consider, for example, whether an 

initiative ordinance that expressly prohibited the governing 

body from taking action for a period longer than three years, or 

committed the governing body to a particular action for more 

than three years, would be permissible.

In this case, the proposed ordinance contained no such 

restrictions. Paragraph A called for the creation and 

"continued existence" of the municipal police department, 

pursuant to N.J.S.A. 40A:14-118. As we noted, Camden had 

already created a municipal police department by ordinance, and 

the department's continued existence was implicit unless, and

until, the existing police ordinance was repealed or modified. 

See, e.g., Inganamort v. Ft. Lee, 72 N.J. 412, 421 n.2 (1977) 

("[A]n ordinance may be promulgated which continues in force 

until repealed or superseded.") (citation omitted). 

Paragraph B of the initiative ordinance prohibited the city 

from disbanding the police force and joining any County police 

force, requiring that Camden "shall instead continue to maintain 

its own police department." Such general language certainly 

does not violate the expressed or implied terms of the Faulkner 

Act. By analogy, in Concerned Citizens of Wildwood Crest v. 

Pantalone, 185 N.J. Super. 37, 40, 47 (App. Div. 1982), we held 

a Walsh Act initiative ordinance that, without temporal 
21 A-5731-11T4

limitation, "affirmatively provide[d] that the beaches in 

Wildwood Crest w[ould] be free," was not an improper restraint 

on the future exercise of legislative action.

Furthermore, based upon the Court's recent guidance, 

judicially-constructed limits on the right to initiative and 

referendum are inappropriate. 

[W]here the legislative intent is not clear 

"from the statute's text, legislative 

history, or place in the larger statutory 

scheme[,]" an intention to immunize an 

ordinance from a Faulkner Act challenge will 

not be found. . . . Put another way, in the 

absence of an unequivocal legislative 

expression to the contrary, citizens in a 

Faulkner Act municipality are empowered to 

protest any ordinance under the Act. The 

burden is on the party seeking to defeat the 

Faulkner Act to clearly establish the 

existence of a contrary legislative intent.

[In re Ordinance 09-02, supra, 201 N.J. at 

362 (quoting In re Ordinance 04-75, supra, 

192 N.J. at 467).]

"It is the function of the Legislature, not the courts, to 

determine how much direct democracy through referendum should be 

conferred on the voters of a municipality." In re Ordinance 04-

75, supra, 192 N.J. at 467. "[T]he democratic processes 

reserved to the people by the Faulkner Act referendum provision 

cannot be abridged except with express legislative approval." 

In re Ordinance 09-02, supra, 201 N.J. at 368. "The Legislature 

has occupied the field in this area, and there is no place for a 
22 A-5731-11T4

separate judicial policy exempting municipal ordinances from 

referendum." In re Ordinance 04-75, supra, 192 N.J. at 470; see 

also Roseff v. Byram Twp., 432 N.J. Super. 8, 13 (App. Div. 

2013) ("[A] court's role is limited to determining whether the 

Legislature's intention to exempt an ordinance . . . from 

referendum is indicated by the authorizing 'statute's text, 

legislative history or place in the larger statutory scheme.'") 

(quoting In re Ordinance 04-75, supra, 192 N.J. at 467)). 

There is no principled reason to treat the Faulkner Act's 

initiative process any differently. See Great Atl. & Pac. Tea 

Co. v. Borough of Point Pleasant, 137 N.J. 136, 146 (1994) 

(stating initiative and referendum under N.J.S.A. 40:69A-184 and 

-185 are similar because "[b]oth forms of action result in 

action that is binding on the governing body"); Twp. of Sparta 

v. Spillane, 125 N.J. Super. 519, 523, 525 (App. Div. 1973) 

("The initiative and referendum processes authorized by the act 

comprise two useful instruments of plebiscite power . . . ."), 

certif. denied, 64 N.J. 493 (1974). We therefore reverse 

those provisions of the Law Division's order that declared the 

proposed ordinance to be "invalid" and restrained its further 

consideration by the Council or the voters because it improperly 

restricted future municipal legislative action.
23 A-5731-11T4

III

"A statute has supremacy over an ordinance." In re 

Ordinance 04-75, supra, 192 N.J. at 469. "[A] State mandate 

embodied in a legislative enactment 'that does not allow for the 

exercise of municipal discretion cannot be overridden by a 

referendum.'" Ocean City, supra, 403 N.J. Super. at 356 

(quoting In re Ordinance 04-75, supra, 192 N.J. at 469). 

However, the Legislature must have intended such preemption. 

Mack Paramus Co. v. Mayor of Paramus, 103 N.J. 564, 573 (1986). 

The Court has long utilized a five-part test to determine 

whether the doctrine of preemption applies:

1. Does the ordinance conflict with state 

law, either because of conflicting policies 

or operational effect (that is, does the 

ordinance forbid what the Legislature has 

permitted or does the ordinance permit what 

the Legislature has forbidden)?

2. Was the state law intended, expressly 

or impliedly, to be exclusive in the field? 

3. Does the subject matter reflect a need 

for uniformity? . . . .

4. Is the state scheme so pervasive or 

comprehensive that it precludes coexistence 

of municipal regulation? 

5. Does the ordinance stand "as an 

obstacle to the accomplishment and execution

of the full purposes and objectives" of the 

Legislature?
24 A-5731-11T4

[Overlook Terrace Mgmt. Corp. v. Rent 

Control Bd. of W.N.Y., 71 N.J. 451, 461-62 

(1976) (citations omitted).]

We have recognized the pervasive nature of the State's 

supervision of municipal finances. See Ocean City, supra, 403 

N.J. Super. at 363 ("Perhaps state supervision of local affairs 

is no more fully developed than in the area of municipal 

finance, where the Legislature has established a comprehensive 

system pertaining to municipal budgets, debt and salaries."); 

and see Roseff, supra, 432 N.J. Super. at 10-11 (concluding an 

ordinance enacted pursuant to the Local Budget Law, N.J.S.A.

40A:4-1 to -89, was not subject to a referendum challenge). 

Plaintiffs argue that, although the proposed initiative 

ordinance dealt solely with the police function, it impacted 

Camden's budget and finances, which are uniquely subject to 

additional statutory regimes. 

MRERA was enacted in 2002. L. 2002, c. 43, § 75. Since 

that time, Camden has been subject to its terms. The 

Legislature found that, with regard to certain municipalities, 

State aid filled their "structural [financial] deficits" but 

failed to "function as an economic impetus toward the rebuilding 

of those municipalities" by addressing the elements needed "to 

ensure [their] long-term economic viability," including 

healthcare services, public safety, and "market-rate housing" 
25 A-5731-11T4

that would "expand the local tax base and provide a greater 

diversity of income levels among municipal inhabitants." 

N.J.S.A. 52:27BBB-2(j) to (m). 

The Legislature intended MRERA to address those needs 

through "exceptional measures, on an interim basis," to 

"strategically invest" funds that would help the subject 

municipalities achieve such viability. N.J.S.A. 52:27BBB-2(n), 

(o). MRERA requires the State Treasurer to prepare "an economic 

stimulus package designed to foster the revitalization" of the 

municipality, along with a "project list" and a specification of 

costs. N.J.S.A. 52:27BBB-44.1, 44. In addition, upon notice by 

the Commissioner of DCA of a municipality's eligibility, the 

Governor appoints a "chief operating officer [(COO)] in 

consultation with the mayor and the governing body." N.J.S.A.

52:27BBB-7(a). The COO is charged with "reorganizing 

governmental operations . . . in order to assure the delivery of 

essential municipal services and the professional administration 

of that municipal government." N.J.S.A. 52:27BBB-3. The goals 

are "municipal rehabilitation" and "economic recovery," pursuant 

to a "strategic revitalization plan" that also addresses 

"regional issues, including public safety." N.J.S.A. 

52:27BBB-6, -29, -38 and -40.
26 A-5731-11T4

The COO serves during a "rehabilitation term" of five 

years, N.J.S.A. 52:27BBB-2.2(a), -6(a), -7(c)(1), although the 

Commissioner of DCA may extend it upon the COO's recommendation. 

N.J.S.A. 52:27BBB-3, -7(c). The COO has all the authority 

allocated by law to the mayor, although the mayor and the 

governing body retain a degree of participation in budget 

decision-making. N.J.S.A. 52:27BBB-9, -11, -23, -25. The end 

of the rehabilitation term marks the expiration of the COO's 

term. N.J.S.A. 52:27BBB-6(a), -7(c)(1). 

During the rehabilitation term, the COO may veto any 

ordinance or resolution adopted by the governing body, but "the 

governing body may override the veto by a two-thirds vote of the 

fully authorized membership thereof." N.J.S.A. 52:27BBB23(a)(1)(a). If the COO believes the override to be "contrary 

to the rehabilitation or economic recovery goals which justified 

the rehabilitation declaration," he or she may submit the matter 

to the "special arbitrator" for a final and unappealable 

determination. N.J.S.A. 52:27BBB-23(a)(1)(b). The special 

arbitrator may uphold the override "only upon a finding that the 

action is consistent with the rehabilitation and economic 

recovery of the qualified municipality." Ibid.; see also

N.J.S.A. 52:27BBB-5.
27 A-5731-11T4

In 2007, the Legislature accepted the recommendation of 

Camden's COO for a rehabilitation term of ten years rather than 

five. N.J.S.A. 52:27BBB-2.2(c), (d); L. 2007, c. 176, § 1. The 

Committee asserts in its brief that the ten-year period ended on 

October 28, 2012. The rehabilitation term is followed by a 

five-year "economic recovery term." N.J.S.A. 52:27BBB-3, -6(a). 

During that term the mayor resumes full authority, with certain 

enhanced appointment and veto power over municipal boards and 

authorities. N.J.S.A. 52:27BBB-6(b)(1) to (5). However, the 

municipality remains subject to annual State compliance audits, 

N.J.S.A. 52:27BBB-6(b)(6), and the financial assistance 

continues until the municipality no longer meets the eligibility 

criteria of SMAA. N.J.S.A. 52:27-BBB-6(b)(7).

TAL superseded SMAA. See S. Budget & Approps. Comm., 

Statement to S. 3118 (Dec. 8, 2011) ("Transitional Aid to 

Localities replaced three existing municipal aid programs: 

Extraordinary Aid, Special Municipal Aid, and Trenton Capital 

City Aid."). TAL funding is a "discretionary aid program." 

N.J.S.A. 52:27D-118.42a. DLGS was accordingly allowed to impose 

the same kinds of rigorous and intrusive conditions on a 

municipality that SMAA had authorized:

Conditions, requirements, or orders deemed 

necessary by [DLGS] may include, but not be 

limited to, the implementation of 

government, administrative, and operational 
28 A-5731-11T4

efficiency and oversight measures necessary 

for the fiscal recovery of the municipality, 

including but not limited to requiring 

approval by [DLGS] of personnel actions, 

professional services and related contracts, 

payment in lieu of tax agreements, 

acceptance of grants from State, federal or 

other organizations, and the creation of new 

or expanded public services.

[N.J.S.A. 52:27D-118.42a.]

The statutory scheme described seemingly demonstrates the 

Legislature's decision to fully occupy the field of municipal 

finance in Camden. The proposed initiative ordinance was not a 

budget ordinance; yet, it cannot be disputed that elimination of 

the police force, and Camden's membership in, and support of, a 

County police force was an integral part of the city's overall 

financial strategy as mapped out in the various MOU's referenced 

above. On its face, the statutory scheme does not mandate that 

Camden enter into a particular regionalized or shared service 

plan. If it did, the initiative ordinance would be barred. 

See, e.g., In re Trenton Ordinance 09-02, supra, 192 N.J. at 469 

("A state mandate that does not allow for the exercise of 

municipal discretion cannot be overridden by a referendum."). 

Yet, certain provisions of the MRERA, including the powers of 

the COO during the "rehabilitation term," and the extraordinary 

device of appointment of a special arbitrator to render 

unappealable decisions, impliedly leave little room for other 
29 A-5731-11T4

voices to be heard. Perhaps, even the voices of the voters of

Camden. 

The record before the Law Division and before us consists 

of several certifications from municipal officials along with 

voluminous supporting documentation. However, there is nothing 

provided, for example, from DLGS or DCA regarding the actual 

implementation of the MOUs and the nature of State oversight as 

to the provision of municipal services that impact the budget. 

In other words, the record inadequately explains if adoption of 

the proposed initiative ordinance creates "an obstacle to the 

accomplishment and execution of the full purposes and objectives 

of the Legislature[.]" Overlook Terrace Mgmt. Corp., supra, 71 

N.J. at 462 (internal quotation marks and citation omitted).

We have been told, without apparent dispute, that the MRERA 

rehabilitation term has ended. Yet, we cannot state with 

certainty how the passage of time since the matter was before 

the Law Division may have changed the municipal landscape, 

particularly as it relates to the preemption issue.

Therefore, we are compelled to remand the matter to the Law 

Division for further consideration of whether the various 

statutory schemes at issue have preempted consideration by the 

voters of the proposed initiative ordinance in this case. We 
30 A-5731-11T4

leave the conduct of the remand to the sound discretion of the 

Law Division.

Reversed and remanded for further proceedings consistent 

with this opinion. We do not retain jurisdiction.