Lawyer Loses Challenge To Rule Limiting The Amount Of Time He Could Speak At City Council Meeting

by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)

SpeakingThere is a lawyer joke in here somewhere about lawyers suing to get more time to speak or how someone should sue to force lawyers to talk less. Potential jokes aside, the issue in Feld v. City of Orange was an interesting one. In Feld, plaintiff challenged a municipal ordinance that reduced, from ten minutes to five minutes, the time members of the public could speak on certain matters at city council hearings. Plaintiff claimed that this ordinance violated his First Amendment right to free speech. Spoiler Alert: He lost. But the issue and the decision are nonetheless interesting. 

Feld was the latest chapter in litigation that has been raging between plaintiff, a lawyer, acting on behalf of himself and his parents' business, and the City of Orange for years. (In a prior decision, the Appellate Division noted that plaintiff considered himself a "zealous gadfly" and a "radical barrister.") At some point during this long-running battle, the city adopted an ordinance "that reduced the time from ten minutes to five that individual members of the public could speak at City Council meetings on general  issues, agenda items or second readings of ordinances before adoption." The city council claimed the change was necessary because "council meetings can extend late into the evening or early into the next day" and this "discourages, if not precludes[,] a fair opportunity to be heard by other members of the public." The city council further claimed that, "without appropriate and rational limitations, the rights of all public speakers [would be] curtailed and undermined." The city council also noted that other municipalities limited the time for speaking during public meetings to five minutes.

The underlying issue in Feld involved plaintiff's objection to the city council's adoption of a resolution that allowed the mayor to sign a lease and option to buy a building owned by the YWCA of Orange, which was in bankruptcy. He challenged the resolution when it was before the city council, and, after it passed, filed a 257 paragraph complaint in lieu of prerogative writs seeking to have it invalidated. As part of this complaint, he also challenged the rule reducing the amount of time members of the public could speak at city council hearings. After filing his complaint, plaintiff filed an order to show seeking, among other things, to restrain the city from enforcing the five-minute rule while the lawsuit was pending. The trial court heard oral argument on the order to show cause, and took testimony from a witness on behalf of the city, who testified that the rule was necessary to "administer the Council meetings more efficiently," and that it was an attempt to "make sure that all of the comments are heard and that everyone gets a chance to talk."

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“All Animals Are Equal But Some Are More Equal Than Others”

 by:  Lawrence A. Calli

Owners of residential properties in New Jersey are no longer limiting themselves, in concept or use, to the idea that a person's home is a mere bastion of solitude and rest.  Rather, many homeowners are expanding their use of residential lots.  To be clear, we are not talking about simply adding a home office or  mother/daughter suite.  No, the newest trend appears to be raising livestock, and it’s not merely a trend in the southern and western counties of the State.  The trend towards municipal ordinances permitting livestock on residential properties has already spread to urban areas (including Jersey City), and is regularly considered by mayors and councils throughout the State. 

In a recent article, the Hopewell Valley News reported that the Hopewell Borough Council has been asked to consider an amendment to its land use ordinance that would allow residents to raise chickens in their backyards ("Hopewell: Backyard Chickens Are Council Topic").  The article notes that amendments in other parts of the State permit residents to keep as many as seven chickens within 25 feet of a neighbor’s property as long as the neighbor approves (larger flocks have to be kept 40 feet from the nearest neighbor).  

Hopewell Township recently adopted an ordinance that permits residents  to keep up to six chickens on their property.  The ordinance gained some notoriety because it limits rooster visits to only 10 days per year, and requires that the roosters be disease-free before visiting with the hens.  However, a spokesperson for Hopewell Township indicated that the amendment that Hopewell Borough adopts would not "in the slightest, possible way” mimic what occurred in Hopewell Township.  In fact, "a majority of communities forbid roosters because some find the crowing noise they make a nuisance, especially if it occurs in the early morning hours."

Is Your Driveway A Principal Use?

by:  Greg Ricciardi

According to the  New Jersey Supreme Court, in certain circumstances the answer is yes.  On June 16, 2011, the Court held that a driveway is a principal use where, pursuant to local zoning, the driveway does not meet the definition of an accessory use.  Moreover, depending on the circumstances, you may need difficult to obtain and costly variances to get your driveway approved.  How could this happen?

The answer lies in the curious case of Nuckey v. Borough of Little Ferry Planning Bd.  These are the facts. A developer owns multiple lots and wants to build a hotel.  One of the lots has no highway access. To remedy this issue, the developer proposes to build a driveway on an adjacent lot that would continue across the corner of another lot owned by the same principals as the developer.  This proposed driveway would provide the needed highway access for the hotel.  Sounds like a simple accessory use right? Herein lies the rub. 

 

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