Whiteman v. Township Council of Berkeley Township, ___ N.J. ___ (2025). South Seaside Park is a small (490 year-round residents) barrier island community that has been annexed to the Township of Berkeley (“the Township”). South Seaside Park sought to deannex itself from the Township and to be annexed instead to the Borough of Seaside Park. South Seaside Park followed a statutory petitioning procedure in doing so. The Township refused consent. South Seaside Park went to court and won a ruling from the Law Division that rejected the Township’s refusal. The Appellate Division affirmed. Yesterday, in a unanimous opinion by Justice Patterson, the Supreme Court affirmed as well.
The Township is two miles from South Seaside Park, across Barnegat Bay. The Township had 41,255 year-round residents, according to the 2010 Census. And not only was South Seaside Park an afterthought in terms of year-round population, it was physically remote from the Township. As Justice Patterson described:
“To reach the mainland section of the Township, a resident of South Seaside Park must drive between thirteen and sixteen miles across seven other municipalities. In the off-season, that trip can take a half hour, and during the summer, it can take forty-five minutes or more.
The Township’s municipal buildings and the vast majority of its recreational facilities, parks, and historic sites are located on the mainland. Because the mainland and South Seaside Park are served by different cable providers, broadcasts of the Township’s municipal meetings are not available to the residents of South Seaside Park.
South Seaside Park’s municipal facilities consist of a basketball court and White Sands Beach, a public beach with restrooms and a water fountain. The Township provides emergency services to South Seaside Park; Township officers, using two police vehicles assigned to South Seaside Park, patrol the community. The Township also hires auxiliary officers to assist the police department during the summer.”
Besides all that, there were affirmative reasons why South Seaside Park preferred to become part of Seaside Park. “South Seaside Park shares a border and a zip code with the municipality it seeks to join, Seaside Park. Plaintiffs presented evidence that because of the distance between their homes and the mainland portion of the Township, South Seaside Park residents rely more on Seaside Park than the Township for emergency services and engage more with the residents and businesses of Seaside Park than with the Township’s mainland community.”
Justice Patterson described in detail the statutory scheme for deannexation proceedings:
“Under New Jersey’s municipal annexation statute, ‘[l]and in one municipality may be annexed to another municipality to which said land is contiguous.’ N.J.S.A. 40A:7-12. Residents seeking to deannex their land from a municipality may present to the municipality’s governing body a petition seeking deannexation, signed by at least sixty percent of the legal voters residing there. Ibid. The municipality’s planning board is charged to consider the evidence and ‘report to the governing body on the impact’ that deannexation would have on the municipality. Ibid. By a two-thirds vote of the full membership of the governing body, the municipality may consent to deannexation. Ibid."
If the governing body declines to consent to the petition for annexation, the petitioners may seek judicial review. Id. at -12.1. In that proceeding, the petitioners have the burden of proof as to the statute’s three requirements: that the municipality’s ‘refusal to consent . . . was arbitrary or unreasonable’; that the refusal ‘is detrimental to the economic and social well-being of a majority of the residents of the affected land’; and that annexation to the new municipality ‘will not cause a significant injury to the well-being of the municipality in which the land is located.’ Ibid.”
The Court “view[ed] N.J.S.A. 40A:7-12 to require a planning board to independently evaluate the merits of a deannexation petition and make an objective recommendation to the municipality’s governing body.” But that did not happen here. As Justice Patterson summarized, “after South Seaside Park’s petition was referred to the Township’s Planning Board, the Board retained a professional planner who did not impartially analyze the evidence as the statute envisions, but instead worked with the Township on its strategy for opposing deannexation and participated in the preparation of the Township’s witnesses for their testimony before the Board. In addition, plaintiffs presented evidence that two Board members made comments opposing the petition while the matter was pending before the Board. After thirty-eight hearings conducted over four years, the Board issued a report recommending that the Township Council deny the petition for deannexation, and the Council passed a resolution denying the petition.”
That series of events led the Supreme Court to agree with the courts below that plaintiffs satisfied the first prong of the statute’s requirements: “that the refusal to consent to the petition was arbitrary or unreasonable.” Quoting the Appellate Division, Justice Patterson said that he planner’s conduct “was tantamount to a court-appointed expert participating in strategy sessions and witness preparation meetings for a party appearing before a court, thereby shaping the record that was developed and attempting to skew it in favor of one of the parties.” That deprived plaintiffs of a fair and impartial hearing on their petition.
The second prong, which requires proof that the municipality’s refusal to consent to the deannexation petition “is detrimental to the economic and social well-being of a majority of the residents of the affected land,” was not seriously contested by the Township. The Court concurred with the rulings below, which had focused on “the geographic distance between South Seaside Park and the Township’s mainland section and the time and effort required for residents to traverse seven municipalities and reach the mainland, where virtually all municipal facilities are located,” which “has given rise to geographic isolation and limited South Seaside Park residents’ connection to the Township’s social and community life.” The Court also adopted the view of the Law Division that “the deannexation petition was primarily motivated by the residents’ view that the Township has declined to invest in their distant community, and their belief that they would be part of the community in the adjacent municipality of Seaside Park.”
Finally, the third prong required plaintiffs to prove that deannexation would not “cause a significant injury to the well-being of the municipality.” Justice Patterson observed that though the Township would lose tax revenue from South Seaside Park, to some extent that loss would be offset by the termination of the need for the police vehicles and personnel of several types that serve South Seaside Park. Moreover, “the deannexation of South Seaside Park would not cause significant social harm to the Township’s remaining residents, given the limited contact between South Seaside Park residents and their counterparts in the Township’s mainland section.”
The Court held that there was substantial evidence in the record to support the findings of the Law Division, which the Appellate Division had affirmed. Though to the extent that statutory interpretation came into play, the de novo standard of review applied, plaintiffs prevailed under that standard as well.
Cases under this statute do not occur often. But Justice Patterson provided a detailed history of the deannexation statute, its history, and prior caselaw under that statute, which will be helpful in such cases going forward.