This evening the Belleville Town Advocates, a group of concerned and very active citizens, sent a formal letter to Mayor Melham and the Belleville Council.
BTA has made a formal demand that the governing body remove a member of the Belleville Planning Board who is also a municipal employee, which is expressly forbidden by state law.
For more than 6 months, citizens have repeatedly voiced their objections to both the Council and the Planning Board that this was a violation of the Municipal Land Use Law. Even the legal opinion of renowned land use attorney Michael Kates was presented to the Township informing them that they are indisputably breaking the law.
Despite all of these warnings over the last several months, Mayor Melham and the Council have refused to remedy the situation.
The gloves are officially off.
This no-nonsense letter promises that if the Belleville Council does not cure the illegal appointment, this well-documented matter will – at the very least – be escalated to state and federal law enforcement agencies.
The Essex Watch is more than happy to help our Belleville colleagues move that process along quickly and efficiently.
Here is BTA’s letter to the Council:
Belleville Town Advocates
129 Mount Prospect Avenue
Belleville NJ 07109
January 19, 2020
Office of the Mayor and Town Council
152 Washington Avenue
Belleville NJ 07109
Dear Mayor Melham and Members of the Township Council,
We, the Belleville Town Advocates, call upon you to address a matter of which you are all aware: a township employee serving on the Planning Board. This appointment runs counter to state law.
The individual serves as a Class IV Planning Board member and, up until January 13th, as a member of the Historical Preservation Commission. That she served on two boards was the justification that both Planning Board attorney Rose Tubito and Mayor Michael Melham gave for the individual to continue to serve despite her municipal employment. In light of her resignation from the Historical Preservation Commission, you must revisit this issue and take proper action to comply with state law regarding planning board appointments.
Mayor Melham appointed the individual to serve as a Class IV members of the Planning Board at the December 11, 2018 Town Council meeting, and the Council unanimously approved the appointment. At that time, the appointment was legitimate. However, as of February 19, 2019, the appointee was listed in municipal ledgers as Account Clerk in the Office of Mayor and Council. A municipal employee serving as a Class IV Planning Board member runs counter to state law.
The state law that encompasses planning board membership – N.J.S.A. 40:55D-23 – states that Class IV members are “other citizens of the municipality, appointed by the mayor or, in the case of the council-manager form of government…by the council.” It further states that “the members of Class IV shall hold no other municipal office, position or employment.” Although the law allows for one Class IV member of a nine-member Planning Board to serve on the Zoning Board of Adjustment or Historical Preservation Commission, the law clearly bars municipal employees from serving as Class IV Planning Board members.
This issue has been regularly brought to your attention and that of the Planning Board since at least July 11, 2019. At the Planning Board meeting on that date, Planning Board attorney Rose Tubito promised BTA member Michael Sheldon a written opinion on the matter. While awaiting that opinion, BTA solicited pre-eminent municipal and land use attorney Michael B. Kates – Council Emeritus for New Jersey Planning Officials — for his opinion on the appointment. Mr. Kates letter of October 26th 2019 concluded the individual’s appointment was barred by state law. A copy of that opinion is enclosed.
Ms. Tubito finally rendered her opinion in a November 6, 2019 letter to Mayor Melham – nearly four months after she promised Mr. Sheldon the opinion. Her conclusion that the appointment continued to be legitimate despite her status as a township employee hinged on the fact the appointee was a member of the Historic Preservation Commission. At the Town Council meeting of November 12, 2019, Mayor Melham cited Ms. Tubito’s reasoning in response to a resident’s challenge.
At the January 14, 2020 Township Council meeting, the Council acknowledged receipt of a letter from the individual, dated January 13th, stating she was resigning from the Historic Preservation Commission, effective immediately.
BTA continues to maintain the individual’s Planning Board membership was negated on the effective date of her employment with the Township of Belleville. In light of the individual’s resignation from the Historic Preservation Commission, Ms. Tubito’s legal opinion no longer applies and now the Mayor and Council – which votes on appointments to all municipal boards – must act to ensure the municipality is in compliance with state law.
The members of Belleville Town Advocates demand this body act on this issue. Either seek the individual’s resignation from the Planning Board or vote to rescind the appointment. If the Mayor and Council votes on appointments to municipal boards, it stands to reason this body has the power to rescind them as well.
Failure to act on this issue will result in complaints and reports being filed with appropriate state and law enforcement agencies.
Belleville Town Advocates
Frank Fleischman III
A copy of BTA’s letter and some of the relevant documentation are provided below.
Update (2/5/20) – Here is coverage of the issue from The Observer: