Monroe’s builder disclosure rule fails court test

Council ponders appeal of ruling

by Maria Prato-Gaines, Staff Writer
   MONROE — The Township Council will decide at a special meeting Monday whether to appeal last week’s Superior Court ruling that deemed unconstitutional a township ordinance requiring developers to disclose political contributions as part of their applications.
   Judge James Hurley’s April 17 ruling in a suit filed last year by Greenridge Estates, of Morganville, nullified the ordinance, which requires planning and zoning board applicants along with their professionals to disclose all political donations made during the two years prior to the application date. He ruled that the ordinance was under-inclusive, too broad and overreaching, and violated the plaintiff’s federal and state rights to free association and privacy.
   According to the written decision, Judge Hurley found that requiring developers to identify the contributions they make to political candidates infringes on their political association because it compels developers to disclose their political affiliations, potentially “chill(ing) participation” and affecting an application.
   The ordinance also is overly broad, the judge said, because it “provides for disclosure of all political contributions made in the past two years, regardless of to whom they were made.” The judge said the ordinance could be read to cover “a $10 political contribution made … to the governor of Hawaii” — something that should not raise “the evil specter of corruption.” Requiring all donations to be reported also violates the developers’ right to privacy because contributions are “protected as private facts, so long as they fall below the current minimum threshold reporter requirements” of $300 at the state level and $200 at the federal.
   In addition, the judge found, the ordinance is “under-inclusive,” because does not require objectors to applications, who have “an equal but adversarial interest” in applications before the planning and zoning boards, to file similar disclosures.
   The judge also concluded that the ordinance “cannot possibly achieve its stated purpose” because no members of the zoning board and only two members of the planning board are elected officials that receive political contributions.
   The township is considering an appeal. Township Attorney Joel Shain said that Mayor Richard Pucci will recommend on Monday that the council approve a resolution authorizing an appeal to the Appellate Division of the state Superior Court in Middlesex County. He said the council also could request that Mr. Shain file for a stay of the decision, which would reinstate the ordinance while the appeal process moves forward.
   ”I am disappointed with the court’s decision,” he said in a statement. “The privacy and association interests of for-profit developers should not trump the public’s interest in full disclosure and transparency. Therefore I am recommending we appeal forthwith.”
   The ordinance was adopted by the township in 2006 as part of a seven-ordinance package of ethics reforms that also included recusal guidelines for board members and a pay-to-play ban.
   Greenridge Estates sued after its April 2007 application to the Planning Board for a preliminary major subdivision was deemed incomplete because it lacked the contribution disclosure statement. The suit was filed in August 2007, alleging that the ordinance violated its right to privacy and freedom of speech and association.
   The township argued that the purpose of its ordinance was to uphold the highest ethical standards and that any political contribution over $300 was already a matter of public record.
   Mayor Richard Pucci declined comment on the case.
   A little over a week ago, Mr. Shain issued an opinion on the same ethics ordinance that attempted to define the meaning of “applicant” in the rules. According to the opinion, applicant only applied to the company before the board and anyone with more than a 10 percent ownership and did not carry over into other associations and companies.