HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 6 of 41 Trans ID: LCV20181724869 MATSIKOUDIS FANCIULLO, LLC 128 Monticello Ave., STR 1 Jersey City, NJ 07304 (201) 915-0407 Attorneys for Plaintiffs COMMITTEE OF PETITIONERS FOR REFERENDUM ON JERSEY CITY ORDINANCE 18-057 Plaintiff, BYRNE, IN HIS OFFICIAL CAPACITY AS CLERK FOR THE CITY OF IERSEY CITY, and THE CITY COUNCIL OF THE CITY OF IERSEY CITY, Defendants. BRIEF ON BEHALF OF PLAINTIFFS William Matsikoudis, Esq. Atty ID No. 022391997 MATSIKOUDIS FANCIULLO, LLC 128 Monticello Ave., STR 1 Jersey City, NJ 07302 Attorney for Plaintiffs COURT OF NEW DIVISION: SUPERIOR JERSEY LAW HUDSON COUNTY DOCKET NO.: CIVIL BRIEF IN SUPPORT OF ORDER TO SHOW CAUSE WITH TEMPORARY RESTRAINTS HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 7 of 41 Trans ID: LCV20181724869 PRELIMINARY STATEMENT The issue before the court on this Order to Show Cause is narrow and precise: whether the Jersey City City Council?s (the ?City Council") vote of 3?0?5 (i.e three in the affirmative, zero against and five abstentions) on the First Reading of an ordinance constitutes an affirmative vote for introduction of the ordinance. As set forth below, the City Council?s own rules state that abstentions do not count as ?no? votes, and only a majority of those voting is required for an ordinance to be introduced on First Reading. Accordingly, the ordinances in question must be placed on the agenda of the City Council for a Second Reading and a public hearing. STATEMENT OF FACTS The facts of this case are simple and set forth in the verified complaint. In sum, Jersey City?s Mayor and the City Council seek to move the Katyn Forrest Massacre Memorial (the ?Katyn Memorial?), from its current location at Exchange Place in Jersey City to a new location on York Street, and they promulgated Ordinance 18?057 (the ?Ordinance to Move the Katyn Memorial" or the ?Ordinance") to accomplish this goal. Pursuant txa State law, Plaintiffs created the Committee of Petitioners For? Referendunl of Jersey' City" Ordinance 18?057 (the ?Committee of Petitioners") to challenge the Ordinance to HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 8 of 41 Trans ID: LCV20181724869 Move the Katyn Memorial by collecting signatures on a petition to at least temporarily, stop the Ordinance from becoming effective and (ii) potentially' cause a :referendum, whereby City residents would vote to determine whether the Ordinance would become effective. Pursuant to State law, the City Council had the option to repeal the Ordinance to Move the Katyn Memorial, or to submit it to voters to decide whether it would become effective via referendum. At its September 12, 2018 regular' meeting, the City" Council considered two :new ordinances (the ?Repeal Ordinances?) that would repeal the Ordinance to Move the Katyn Memorial. The City Council voted three (3) in the affirmative and zero (0) against, and five (5) City Council members abstained. One City Council member was absent. None of the council members that abstained offered a rationale or justification for their abstention. The City Clerk and Corporation Counsel determined that this 3-0?5 vote of the City Council constituted a defeat of the Repealing Ordinances on First Reading. Plaintiffs disagree with this determination, and have filed this lawsuit to obtain a court ruling that the 3?0?5 vote constitutes passage of the Repeal Ordinances and (ii) an order requiring that the Repeal Ordinances be placed on an upcoming agenda for a public hearing and.ea Second Reading vote. Plaintiffs also seek to temporarily restrain the City from placing the Ordinance to HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 9 of 41 Trans ID: LCV20181724869 Move the Katyn Memorial on the ballot until the City Council holds a public hearing on the Repeal Ordinances and considers them on Second Reading. Finally, the Committee of Petitioners also assert that depriving them of right to speak at a public hearing deprives them of a substantive right under the New Jersey Civil Rights Act. ARGUMENT To be entitled to interim relief pursuant to Rule 4:52-1, a party must show that the restraint is necessary to prevent irreparable harm that the injury suffered cannot be adequately addressed by monetary damages, which may be inadequate because of the nature of the right affected; that the party seeking the injunction has a likelihood of success on the merits; that the relative hardship favors the party seeking the restraint; and that the restraint does not alter the status quo ante. Crowe De Gioia, 90 NHJ. 126, 132-36 (1982). Plaintiff meets all of these requirements for a temporary injunction against Defendants, requiring them not to place the Ordinance to Move the Katyn Memorial on a ballot for 21 special election until a pmblic hearing and Second Reading vote is held on the Repealing Ordinance. HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 10 of 41 Trans ID: LCV20181724869 I . TEMPORARY RESTRAINTS ARE NECESSARY TO PREVENT IRREPARABLE HARM, AS DENYING THE DESERVED PUBLIC HEARING AND SECOND CITY COUNCIL VOTE ON THE REPEALING ORDINANCE WOULD DENY PLAINTIFFS THE RIGHT TO BE HEARD AND ELIMINATE A POSSIBLE AVENUE TO DEFEAT THE ORDINANCE For good reason, New Jersey statutes clearly establish the right for interested public participants to voice their opinions regarding pending municipal ordinances: ?[A]ll persons interested shall be given an opportunity to be heard concerning the ordinance. The opportunity to be heard shall include the right to ask pertinent questions concerning the ordinance by any resident of the municipality or any other person affected by the ordinance. N.J.S.A. 40:49?2. The above requirement for a public hearing, giving members of the public the right to be heard on an ordinance that is voted on a Second. Reading, is not an empty one, but a crucial part of local democracy: To wrongfully' interpret the 3-0?5 vote as a defeat, would take away the Plaintiffs? and. the jpublic?s right to Ibe Iheardq which. constitutes a grave harm in and of itself. Moreover, eliminating the Second Reading would take away the possibility that Plaintiffs or other members of the public may make arguments or ask questions that could sway the City Council to change its vote, and possibly repeal the Ordinance to Move the Katyn Memorial, thereby obviating the need for a referendum. Therefore, wrongfully denying a Second Reading HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 11 of 41 Trans ID: LCV20181724869 on the Repeal Ordinances would deprive Plaintiffs of a potential avenue to defeat the move of the Katyn Memorial, which constitutes additional irreparable harm. II. PLAINTIFFS ARE LIKELY TO SUCCEED THEIR CLAIMS BECAUSE, TO BE INTRODUCED ON FIRST READING ONLY REQUIRES A MAJORITY OF A QUORUM, AND ABSTENTIONS DO NOT COUNT AS NO VOTES PER CITY COUNCIL RULES New .Jersey statutes and case laW' clearly' distinguish what is required to adopt an ordinance from what is necessary to simply move the ordinance to a Second Reading. There is 1M3 question that N.J.S.A. requires the affirmative vote of a majority of all members of the Council to adopt an ordinance. However, the possible adoption of an ordinance only occurs after its Second Reading. In contrast, moving an ordinance along to a Second Reading (where it may be adopted) is much simpler. ?As to the number of votes required for passage on first reading, it would be appear that only a majority of a quorum is required. Although some statutes require a specific majority vote for adoption on second reading, there appears to be no statue or case requiring this for introduction." Pane, 34 NJ Practice Local Government Law. Sec. 10.2 (4th ed.) The common law rule is that a majority of a quorum is required. for the. governing' body" to take action. Ross HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 12 of 41 Trans ID: LCV20181724869 Miller, 115 N.J.L. 61, 63 (NJ 1935)(? at common law a majority of a quorum was empowered to fill a vacancy, or take any other action within its proper Housman v. Earle, 98 N.J.L. 379, 382 (1923) (where three of five council members were present and there was a vote of two in affirmative and one abstention, the court deemed it an affirmative vote concluding ?where the statute is silent on the subject, as it appears to be in the present case, the common?law rule must prevail, namely, that a majority of a quorum" is all that is needed). Since no statute or case has changed this common law rule, it still stands that a majority of a quorum is all that is needed for an ordinance to pass on first reading. One treatise explained the common law as follows: Speaking in terms of a broad general rule of law, it would seem to be well settled that in the absence of some express statutory or other regulation to the contrary, when a quorum of a municipal council is present, a majority of that quorum has the right to take any action which is within the power of the entire body. Furthermore, ill a substantial number of cases, the courts have expressly or impliedly held or recognized that, given the presence of a quorum, it is not essential to the validity of action taken or authorized. by such. majority' that at least a quorum should actually vote, or that the action should receive the favorable votes of a majority of all members present, it being frequently stated that the exercise of the proper powers and authority of a city council ought not, and may not, be impeded or prevented by mere abstention from voting (or by the casting of a blank ballot) on the part of one or more of the members present. 63 1072. HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 13 of 41 Trans ID: LCV20181724869 Additionally, the City Council's own Rules state that an abstention ?shall not be deemed either as an ?aye' or ?nay? vote . . . . ?The Council member abstaining from the vote shall be deemed to have taken a strict neutral position on the matter.? Jersey City Code, Sec. See also IBooker? v. .Rice, 431. N.J. Super. 548 (App. Div. 2013)and Zimmer v. Castellano, 432 N.J. Super. 412 (2013). (both. holding' that abstentions must not. be deemed. as :no votes). Per City Council Rules, a ?majority of the full membership of the Council shall constitute a quorum." Jersey City Code, A350?l3. Thus, with respect to the 9? member City' Council, a quorum is five, and, in turn, a majority of a quorum is three. Therefore, three votes in favor of the Repeal Ordinances introduction is sufficient to move it to a Second Reading and public hearing. Moreover, since five ?members abstained. instead. of "voting no, three votes leads to an ?ayes have it? conclusion. Accordingly, the City? Council's 3?0?5 'vote (M1 the IRepeal Ordinances must be deemed an affirmative vote in favor of introduction. Even. were the simple Inath. not so, given. the public rights at stake, New Jersey case law demands that this HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 14 of 41 Trans ID: LCV20181724869 court view the five ?abstention? votes as ?yes? votes. New Jersey courts have long recognized the general common law rule ?that the vote a member present who declined to vote at all should be counted in the affirmative." Kozusko v: Garretsonq 102 N.J.L. 508, 510 (l926)(citing l?ount Parker, 32 N.J.L. 341 (1867). Alternatively, abstentions have been deemed to as voting with the majority: nder the common law the rule is that a member of a public body, such as a governing body for example, who abstains from voting, is counted toward a quorum and is regarded as having assented to the vote of the majority. Mount v. Parker, 32 N.J.L. 341 (1867. The basis for this rule is that coming to a decision and 'voting is the duty" of members of such bodies and abstention is a violation of such duty. A violation of duty ought not allowed to create an advantage for those whose point of view represent a minority. Coz Koenig, New Jersey Zoning and Land Administration (GANN 2018). Whether the abstentions, for which there was no justification offered, are counted as neutral or yes votes, the conclusion is the same: the Repeal Ordinances passed on First Reading. THE RELATIVE HARDSHIP AND THE PUBLIC INTEREST FAVOR ENTERING INJUNCTIVE RELIEF As stated above, not granting injunctive relief would deny the public and the Plaintiffs the right to be heard at HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 15 of 41 Trans ID: LCV20181724869 a public hearing; Granting the injunction. would simply require the City Council to have one additional public hearing at a regular City Council Meeting, which typically has several such hearings (and frequently more than ten), depending upon how many ordinances are up for Second Reading. In other words, the harm to the public would be grave, while the corresponding inconvenience to the City Council would be, at most, minimal. IV. DEFENDANTS FAILURE TO POST THE REPEAL ORDINANCES FOR A SECOND READING AND TO GRANT A PUBLIC HEARING CONSTITUTES A VIOLATION OF THE NEW JERSEY CIVIL RIGHTS AND THEREFORE PLAINTIFFS SHOULD BE AWARDED ATTORNEYS FEES The New Jersey Civil Rights Act provides that Any person who has been deprived of any substantive rights, privileges or immunities secured by the Constitution or laws of this State, or whose exercise or enjoyment of those substantive rights, privileges or immunities has been interfered with or attempted to be interfered with, by threats, intimidation or coercion by a person acting under color of law, may bring a civil action for damages and for injunctive other appropriate relief. N.J.S.A 10:6?2 (C). Additionally, a ?court may award the prevailing party reasonable attorney's fees and costs." J.S.A. 10:6?2 The issue here is whether the Defendants deprived Plaintiffs of a substantive right by refusing to post the HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 16 of 41 Trans ID: LCV20181724869 Repeal Ordinances for ea public hearing, thereby depriving them of the right to be heard at a public hearing. The New Jersey Supreme Court has set forth that a substantive right must be anchored in a statue and pass the so called Blessing test established the United States Supreme Court, pursuant to which a plaintiff must show that: the statute be intended to ?benefit the plaintiff?; (2) ?the right assertedly protected by the statute is not so ?vague and amorphous' that its enforcement would strain judicial competence"; and (3) ?the statute must unambiguously impose a binding obligation on the States.? Tumpson v. Farina, 218 N.J. 450, 474 (2014) quoting' Blessing v. Freestone, 520 U.S. 329, (1997). In Tumpson v. Farina, 218 N.J. at 478, the Court held that Hoboken's failure to certify a petition for a referendum was a substantive right that was for the benefit of plaintiff petitioners as representatives of voters in Hoboken, that it was not the enforcement of an ?amorphous statute that strains judicial competence" and that the statue in question unmistakably imposed a binding obligation on Hoboken to accept the referendum petition for filing. The Court went on to impose attorneys? fees on Hoboken after concluding that there was nothing in the Civil Right?s Act that ?suggests that the drafters did not 10 HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 17 of 41 Trans ID: LCV20181724869 intend its remedies to apply to enforcement of the right of referendum." Ed at 479. Applying the Blessing test as set forth in Tumpson v. Faria to this case should lead to the same conclusion: that Defendants violated Plaintiffs' substantive rights by refusing to post the Repeal Ordinances for a public hearing and a Second Reading. The right for ?all persons interested [to] be given an opportunity to be heard concerning the ordinance? is clearly set forth in New Jersey statue. N.J.S.A. 40:49?2. This right applies not only to plaintiffs, but ?any resident of the municipality or any other person affected by the ordinance.? Ed. There appears to be nothing ?amorphous? about the statue that would ?strain judicial competence" and the statue in question clearly requires ordinances that pass First reading to be given a public hearing and considered on a second reading. Finally, there is nothing in the Civil Rights Act indicating that the drafters did not intend its remedies to apply to enforcement of the right of to be heard at a public hearing. Accordingly, Defendants failure to post the Repeal Ordinances for a Second Reading and pubic hearing constitutes a violation of the New Jersey Civil Rights Act and the plaintiffs should be awarded attorneys fees. ll HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 18 of 41 Trans ID: LCV20181724869 CONCLUSION For the reasons stated above, the Court should grant Plaintiffs request for injunctive relief, declare that the Repeal Ordinances passed for introduction on First Reading, and order the City Council to schedule a public hearing and vote on a Second Reading. Dated: October 3, 2018 Respectfully Submitted, William Matsikoudis, Esq. (022391997) 12 HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 19 of 41 Trans ID: LCV20181724869 MATSIKOUDIS FANCIULLO, LLC 128 Monticello Ave., STR 1 Jersey City, NJ 07304 (201) 915-0407 Attorneys for Plaintiffs (SUPERIOR COURT OF NEW JERSEY COMMITTEE OF PETITIONERS FOR HUDSON COUNTY, LAW DIVISION REFERENDUM ON JERSEY CITY ORDINANCE 18-057, DOCKET NO.: t'ff alni 3, CI V. VERIFIED COMPLAINT AND CITY OF JERSEY CITY, ROBERT BYRNE, DESIGNATION OF TRIAL IN HIS OFFICIAL CAPACITY AS CLERK COUNSEL FOR THE CITY OF JERSEY CITY, and THE CITY COUNCIL OF THE CITY OF JERSEY CITY, Defendants. The Committee of Petitioners For Referendum on Jersey City Ordinance 18-057 (?Plaintiffs? or the ?Committee of Petitioners?), through their undersigned attorneys, by way of Veri?ed Complaint, state as follows: 1. On June 13, 2018 the City Council of Jersey City (the "City Council?) passed Ordinance 18-057 (?the Ordinance to Move the Katyn Memorial" or ?the Ordinance?) that seeks to move a statue, the Katyn Forrest Massacre Memorial ("the Katyn Memorial"), from its current location at Exchange Place in Jersey City to a new location on York Street 2. Pursuant to HM. et. al (the "Referendum Law?), to stop an ordinance from becoming effective and potentially cause a referendum where voters would decide whether an ordinance becomes law, resident voters may gather signatures totaling ?fteen percent of the total votes cast in Jersey City in the last election at which members of the General Assembly were on the ballot HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 20 of 41 Trans ID: LCV20181724869 3. On or about July 3, 2018, pursuant to the Referendum Law, the Committee of Petitioners submitted 9,471 signatures to the Jersey City City Clerk in an effort to challenge the Ordinance to Move the Katyn Memorial. 4. Although only 6,714 signatures were required to successfully trigger the referendum process, on July 23, 2018, the City Clerk of Jersey City informed the Plaintiffs that they had submitted just 3,833 valid signatures. 5. Pursuant to the Referendum Law, Plaintiffs submitted additional signatures on or about August 2, 2018. 6. On August 14, 2018, the City Clerk certi?ed that the Plaintiffs had submitted the suf?cient number of signatures under the Referendum Law to trigger and require a referendum. 7. The Referendum Law required the City Clerk to submit the petition to the City Council, which left the City Council only two choices: It had to either repeal the the Ordinance to Move the Katyn Memorial within 20 days, or (ii) not repeal the Ordinance in such time, which would, in turn, require, the Clerk to put the text of the proposed repeal to the voters by referendum. and 191. At that juncture, the petition for referendum could have been withdrawn if four of the five members of the Committee of Petitioners had assented to its withdrawal. E. In any event, the Ordinance to Move the Katyn Memorial would not take effect until after the referendum, and, then, only if the voters had approved it. N.J.S.A. 8. On September 12, 2018, the City Council placed a two ordinances on the agenda (the ?Repeal Ordinances?) that would have repealed the Ordinance to Move the Katyn Memorial. A copy of the Repeal Ordinances are attached hereto as Exhibits A. HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 21 of 41 Trans ID: LCV20181724869 9. Councilman Michael Yun requested that the Repeal Ordinances be deemed to have passed on First reading and that they be placed on the agenda for a Second reading in an email to the Council President, but his request was rejected after an email opinion from an Assistant Corporation that erroneously construed the law. A copy of the email exchange is attached hereto as Exhibit B. 10. Per New Jersey statute, a municipal ordinance requires two votes to become effective af?rmative votes on both a First Reading and a Second Reading. ELSA 40:49-2. 11. Eight City Council members were in attendance at the City Council?s meeting on September 12, 2018: Three City Council members voted yes; zero voted no; and ?ve abstained when voting on the Repeal Ordinances. A IN UN TIVE REL EF 12. The number of votes required for passage of an ordinance on first reading is a majority of a quorum. 13. A quorum of the City Council is five and a majority of a quorum is three. 14. Therefro, City Council vote of 3-0-5 constituted an af?rmative vote on the Repeal Ordinances on First Reading. SECOND A EOF T10 VIOLAT 0 0 HEN ERSEY EVIL RIGHT ACT The Plaintiffs? right to speak at a public hearing is a substantive right protected by the New jersey Civil Rights Act. 10:6-21cl. HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 22 of 41 Trans ID: LCV20181724869 15. Defendants refusal to post the Repeal Ordinances for a Second reading and to grant a public hearing constitutes a Violation of New Jersey Civil Rights Act. FOR RELIEF WHEREFORE, Plaintiffs respectfully request that the Court render judgment: Immediate, preliminary, and permanent injunctive relief, enjoining the Defendants from placing the Ordinance to Move the Katyn Memorial Ordinance on the ballot for a referendum until it is placed on City Council agenda for a Second reading and public hearing. ordering the City Clerk to declare that Repeal Ordinances passed upon First Reading,- ordering the City Council to post the Ordinance for a Second Reading and a public hearing; granting Plaintiffs reasonable attorneys fees and costs of suit; and granting Plaintiffs any other relief the Court deems equitable. Respectfully submitted, MATSIKOUDIS FANCIULLO, LLC Wows C. SIK UDIS . Dated: October 3, 2018 DE NA I Plaintiffs designate William Matsikoudis of Matsikoudis Fanciullo, LLC, as trial counsel. WILLIAM C. MATSIKOUDIS, ESQ. HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 23 of 41 Trans ID: LCV20181724869 OFN THE TI Pursuant to R. 4:5-1, it is hereby stated that the matter in controversy is not the subject of any other action pending in any other court or of a pending arbitration proceeding to the best of my knowledge and belief. Also, to the best of my knowledge and belief, no other action or arbitration proceeding is contemplated. Further, other than the parties set forth in this pleading, I know of no other parties that should be joined in the above action. In addition, I recognize the continuing obligation of each part to file and serve on all parties and the court an amended certification if there is a change in the facts stated in this original certification. WILLIAM C. MATSIKOUDIS, ESQ. Dated: October 3, 2018 Jersey City, NI HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 24 of 41 Trans ID: LCV20181724869 RIFI ATI I, lack of full age, hereby certify as follows: 1. I am one of the member of the Plaintiff Committee of Petitioners of Ordinance 18-057 and I have personal knowledge of the facts and allegations it contains. 2. I have read the Verified Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 3. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. UZWM lack HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 25 of 41 Trans ID: LCV20181724869 RIF 1, Oscar Lakra, of full age, hereby certify as follows: 7. I am one of the member of the Plaintiff Committee of Petitioners of Ordinance 18-057 and I have personal knowledge of the facts and allegations it contains. 8. I have read the Verified Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 9. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. A KM: LL Oscar Lakra HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 26 of 41 Trans ID: LCV20181724869 I, Kristen Zadroga Hart, of full age, hereby certify as follows: 13. I am one of the member of the Plaintiff Committee of Petitioners of Ordinance 18-057 and I have personal knowledge of the facts and allegations it contains. 14. I have read the Verified Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 15. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. drab/m Mia/1W Kristen Zal?goga Halli! HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 27 of 41 Trans ID: LCV20181724869 VE FICATION I, Reka Nandwani, of full age, hereby certify as follows: 10. I am one of the member of the Plaintiff Committee of Petitioners of Ordinance 18-057 and have personal knowledge of the facts and allegations it contains. 11. I have read the Verified Complaint in this action, and the facts alleged are true to the best of my knowledge, information and belief. 12. I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me is willfully false, I am subject to punishment. Rekha Nandwani HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 28 of 41 Trans ID: LCV20181724869 EXHIBIT A HUD- L- 003957- 18 10/03/2018 1 ::Trans ID: LCV20181724869 City Qlerk Flle No. 0rd-18-111 Agenda No. 3 . Reading Agenda No. 2nd Reading Final Passage (onruaunscaz (on JERSEY CITY, NJ. COUNCILAS AWHOLE offered and moved adoption of the following ordinance: CITYOFIDINANCE 13?111 DEFEATED TITLE: AN ORDINANCE REPEALING CITY ORDINANCE 18-057: ORDINANCE (1) REAFFIREIING THE ACCEPTANCE OF THE KATYN FOREST MASSACRE MEMORIAL AS A GIFT TO THE CITY FROM THE KATYN FOREST MASSACRE MEMORIAL COMMITTEE. (2) RESCINDING ORDINANCE NICO-299 WHICH APPROVED THE PLACEMENT OF THE KATYN FOREST MASSACRE MEMORIAL ON THE MEDIAN STRIP DIRECTLY OPPOSITE 75 MONTGOMERY STREET WEST OF THE INTERSECTION OF MONTGOMERY STREET 5; WASHINGTON (3) RELOCATING THE KATYN FOREST MASSACRE MEMORIAL TO THE EASTERN TERMJNUS OF YORK STREET IN PERPETUITY AND (4) AUTHORIZING THE CITY TO ENTER INTO AN AGREEMENT WITH THE KATYN FOREST MASSACRE MEMORIAL COMMITTEE, INC., ALLOWING THE COMMITTEE -TO PARTNER WITH THE CITY IN STEWARDSHIP OF THE MEMORIAL AT THE EASTERN TERMINUS 0F YORK STREET AND CONDUCT ACTIVITIES AS PERMITTED UNDER APPLICABLE LAWS AND DEFEATED WHEREAS, City Ordinance 18-057, entitled above, was adopted by the Jersey City Municipal Council on one 13, 2018; and WHEREAS, City Ordinance 18?057 was due to become effective 011 July 3, 2018. A Committee of Petitioners, pursuant to N.J.S.A. ?led petitions in the O?'ice of the City Clerk on July 3, 2018 protesting the passage of The Ordinance; and WHEREAS, the petitions ?led with the City Clerk?s Of?ce were found to be insuf?cient and the Committee of the Petitioners were so noti?ed on July 23, 2018. Pursuant to N. J. SA. 40: 88 the Committee of Petitioneis ?led supplementary petitions on August 2, 201 8; and WHEREAS, due to the volume of petitions and the ?ve days permitted by the Act to process same, the Municipal Clerk asked the Corporation Counsel to seek relief from the statute and be granted additional time until August 13, 2018; and WHEREAS, the Honorable Mary Costello, .S.C., Hudson County, granted such relief subject to the condition that the Municipal Clerk re??ain from giving notice pursuant to N.J.SA. to the Municipal Council until their September 12, 2018 Regular Meeting; and WHEREAS, on August 13, 2018 the Municipal Clerk certi?ed that the Committee of the Petitioners had the statutory number of signatures suf?cient to snapend the Ordinance pursuant to N.J.S.A. and WHEREAS, pursuant to the Court Order, the Municipal Council will receive a Certi?cation ?om the Municipal Clerk on September 12, 2018 that the Committee of the Petitioners had enough valid signatures to request that City Ordinance 18-057 be repealed; and NOW, THEREFORE, BE IT ORDAINED that the Municipal Council of the City of Jersey City does hereby repeal City Ordinance 18-057. ATED APPROVED AS TO LEGAL FORM APPROVED: APPROVED: Corporation counsei Business Certification Required El 1 Not Required El ORDINANCE NO. TITLE: 0rd. 18-111 SEP12 201?3 DEFEATED An mom Mm?rml "4:51: 'Aanu-wm I-d?mrluu Ibo-mount- of": him I?m WWI-nit lad-Mr Hm uh Mum. Mum? Domitian. Inn: 33} mm Iluc gunman! onbo hem Faun Mann: Mama] Mp um! om: 1:le A Smm?doculn' um Km: Fumme-?I?mmlul In nonunion-In": aqul'Sll?l In mummy mi WWI Ill! City-HI ?Hahn-n ml: lion-u Mlmohluwhl Con-Tina lm. Ilium; Oman-Hm to pm with IR: Cir: hum-loin om- Id. IhIEui-rm Terrill-m of'mk sum and conduct mix-idol pnmo'llod undu- applicable lam and policies. REOORO OE OOUNOILYOTE ON INTRODUCTION SEP 1 3 ~0v~5? COUNCILPERSON AYE NAY N.V. COUNCILPERSDN AYE NAY N.V. COUNCILPERSON AYE NAY NY. RIDLEY A3 5mm YUN RIVERA A6 rm?: A6 5,175. SOLOMON WATTERMAN WAS mm BOGGIANO ROBINSON ??sgmr? LAVARRO, PRES. doom: RECORD OF COUNCIL YOTE TO PUBLIC HEARING Councilperson moved, seconded by Councilperson to close P.l-l. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. RIDLEY YUN RIVERA SOLOMON BOGGIANO ROBINSON LAVARRO. PRES. I Indicates Vole voting (Romain) DEFEATED RECORD OF COUNCIL VOTE 0N AMENDMENTS, IF ANY Councilperson mailed to omend'Ordlnano-o. seconded by GOUnoilpmon 8: adopted COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. RIDLEY YUN RIVERA SOLOMON BOGGIANO ROBINSON LAVARRO, PRES. RECORD OF FINAL COUNCIL VOTE COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. COUNCILPERSDN AYE NAY N.V. RIDLEY YUN RIVERA PRINZ-AREY SOLOMON BOGGIANO ROBINSON LAVARRO, PRES. I Indicates Vole N.V.uNot Voting {Ahslalnl on ?rst reading ofthe Council OfJersey City. NJ. on SEP I 2 2018 Adopted on second and ?nal reading after hearing on This Is to certify thal the foregoing Ordinance was adopted by APPROVED: the Municipal Council at Its meeting on Rolando R. Lavarro. Jr.l Council President Robert Byrne. Olly Clerk Date *Amendment(s): APPROVED: Steven M. Fulop. Mayor Dale Date to Mayor HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 31 of 41 Trans ID: LCV20181724869 FACT SHEET This summary sheet is to be attached to the front of any ordinance/resolution that is submitted for Council consideration. Incomplete or vague fact sheets will be returned with the ordinance/resolution. Full Title of OrdinancelResolution AN ORDINANCE REPEALING CITY ORDINANCE 18-057: ORDINANCE (1) REAFFIRWG THE ACCEPTANCE OF THE KATYN FOREST MASSACRE MEMORIAL AS A GIFT TO THE CITY FROM THE KATYN FOREST MASSACRE MEMORIAL COMMITTEE, (2) RFASCINDING ORDINANCE MCC-299 WHICH APPROVED THE PLACEMENT OF THE KATYN FOREST MASSACRE MEMORIAL ON THE MEDIAN STRIP DIRECTLY OPPOSITE 75 MONTGOMERY STREET WEST OF THE INTERSECTION OF MONTGOMERY STREET 5; (3) THE KATYN FOREST MASSACRE MMORIAL TO THE EASTERN TEWUS OF YORK STREET IN PERPETUITY AND (4) AUTHORIZING THE CITY TO ENTER INTO AN AGREEMENT WITH THE KATYN FOREST MASSACRE MEMORIAL COMMITTEE, DIG, ALLOWING THE COMMITTEE TO PARTNER WITH THE CITY IN STEWARDSHIP OF THE MEMORIAL AT THE EASTERN TERMINUS OF YORK STREET AND CONDUCT ACTIVITIES AS PERMITTED UNDER APPLICABLE LAWS AND Initiator .. Department/Division City Clerk?s Of?ce . City Clerk?s Of?ce (Municipal Council) Name/Title Robert Byrne, City Clerk (Richard Boggiano, Councilperson. Ward Michael Yun, Councilperson, Ward D) Phone/email 201-647-5149 rb?n?jcnjorg 201-547-5159 201-547-5485 myung?licniorg Note: Initiator must be available by phone during agenda meeting (Wednesday prior to council meeting 4:00 pm.) Resolution Purpose Repeal of City Ordinance 18-057. On August 13, 2018 the Municipal Clerk certi?ed?that the Committee of Petitioners had the statutory number of signatures suf?cient to suspend the Ordinance pursuant to N.J.S.A. 40: 1 89. Pursuant to Court Order by Honorable Mary Costello, J.S.C., Hudson County, the Municipal Council will receive a Certi?cation from the Municipal Clerk on September 12, 2018 that the Committee of the Petitioners had enough valid signatures to request that City Ordinance 18-057 be repealed. I certify that all the facts presented herein are accurate. Signature of Department Director Date HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 32 of 41 Trans ID: LCV20181724869 City Clerk File No. 18-112 Agenda No. 3 I let Reading Agenda No. 2nd Reading Flnal Passage ORDINANCE DEFEATED 0F JERSEY CITY, NJ. COUNCIL AS A WHOLE offered and moved adoption of the foilowlng ordinance: CITYOHDINANCE 13-112 DEFEAT-ED ORDINANCE (1) LOCATING THE KATYN FOREST MASSACRE MEMORIAL AT THE EASTERN TERMINUS or EXCHANGE PLACE REPEAL ORDINANCE 13-057 AND AND AUTHORIZING THE CITY TO ENTER INTO AN AGREEMENT WITH THE KATYN FOREST MASSACRE MEMORIAL COMMITTEE, INC. REGARDING IOINT STEWARDSHIP or THE MEMORIAL WHEREAS, the Katyn Forest Massacre Memorial (?Memorial") Was installed at the eastern terminus of EXChange Place Plaza in 1989 because its size and structural composition made installation at alternate locations designated by the City Council impossible; and WHEREAS, the current location of the Memorial has permitted services to be held, with the cooperation of the City, around the Memorial commemorating the massacre most recently by Res. 17-273 closing the street so the service could take place in April, 2017; and WHEREAS, the Memorial contains soil from the site of the Katyn Massacre; and WHEREAS, improvements to Exchange Place can be completed without moving or damaging the Memorial. and the factual findings of Ordinance 18-057 are unsupported by credible evidence. BE IT ORDAINED that Ordinance and Ordinance 18?057 are hereby repealed; and (2) the City is authorized to enter into an agreement with the Katyn Forest Memorial Committee, Inc. allowing the Committee to partner with the City in providing stewardship over the Memorial, subject to the terms of an agreement to be negotiated; and the City approves the placement of the Katyn Forest Massacre Memorial in its current location at the eastern terminus of Exchange Place Plaza; and the City is authorized to temporarily relocate the Memorial for a period not to exceed 12 months only after showing that it is structurally necessary to complete improvements to Exchange Place and that the Memorial can be moved without damaging it; and DEFEATED the City and its agencies Shall not approve any plan for the improvement of Exchange Place which does not incorporate the Memorial in substantially the same location it currently occupies. I. All ordinances and parts of ordinances inconsistent herewith are hereby repealed. II. This ordinance shall be a part Ofthe Jersey City Code as though codi?ed and fully set forth therein. The City Clerk shall have this ordinance codi?ed and incorporated in the official copies of the Iersey City Code. ORDINANCE NO. TITLE: 0rd. 1 8-112 3.1 SEP 12 2018 DEFEATED An ordinance (1) Locating the Km Furoet Massacre Memorial at the Eastern Terminus ofExohango Piece Plaza; (2) Repeal Olriinauco 18-057 and 299; end (3) Authorizing the City to enter into an agreement with the Katya Fowst Massacre Munoriai Committee, Inc, regarding Joint Stewardship of the "mm? RECORD OF COUNCIL VOTE ON INTRODUCTION SEP 1 2 2m gag?5' COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. RIDLEY .46 9mm YUN RIVERA .45; mm Aggy-mar SOLOMON WATTERMAN 4,35 774,? BOGGIANO ROBINSON m5 5 LAWRRO. PRES. .455 am . RECORD OF COUNCIL VOTE TO CLOSE PUBLIC HEARING Councilperson moved. seconded by Councilperson to close P.H. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. RIDLEY YUN RIVERA PRINZ-AREY SOLOMON WATTERMAN BOGGIANO ROBINSON LAVARRO. PRES. I Indlcates Vote Voting (Abotaini SP KE DEFEATED RECORD OF COUNCIL VOTE 0N AMENDMENTS, IF ANY Councliporeon mousdtoamand'?rdlnanm, seconded hyCouncIIperson it adopted COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. RIDLEY YUN RIVERA SOLOMON BOGGIANO ROBINSON LAVARRO, PRES. RECORD OF FINAL COUNCIL VOTE COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. COUNCILPERSON AYE NAY N.V. RIDLEY YUN RIVERA SOLOMON WATTERMAN BOGGIANO ROBINSON LAVARRO, PRES. Indicates Vole Voting (Absiaini Council OfJersey Olly. N.J.on SEP I 2 2018 Adopted on second and ?nal reading afterhearing on This is to certify that the foregoing Ordinance was adopted by APPROVED: the Municipai Council at its meeting on Roiando R. Levarro. Jr.. Councii President Robert Byrne. City Cierir. Date *Amendment(e): APPROVED: Steven M. FolOp, Mayor Date Date to Mayor HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 34 of 41 Trans ID: LCV20181724869 Continuation of City Ordinance 1 8 1 1 2 . page 2 DEFEATED If an}:r part of this ordinance is to any extent invalid or unenforceable for any reason, including the prior repeal of any other ordinance referenced herein, all other parts shall remain in fuii force and effect IV. This ordinance shall take effect at the earliest possible time and manner provided by law. V. The City Clerk and Corporation Counsel are hereby directed to change any chapter, article, and section numbers in the City Code in the event that numerical con?ict is found when codifying this ordinance to avoid confusion or accidental deletion of existing provisions. mm DEFEATED 9/10/13 - . H- -. APPROVED AS TO LEGAL FORM APPROVED: Corporation Counsel APPR DVED: BusinesaAdminlsimlor certi?cation Requlred Not Required a? dh? ma pang-MW.? ?pH?mutua'umdn?'ll?qw -. HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 35 of 41 Trans ID: LCV20181724869 EXHIBIT HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 36 of 41 Trans ID: LCV20181724869 CERTIFICATION PURSUANT TO R. 4:5-1 Pursuant to the requirements of Rule 4:5-1 OF OTHER ACTIONS), I, the undersigned do hereby certify, to the best of my knowledge, information and belief, that except as hereinafter indicated, the subject matter of the controversy referred to in the within pleading is not the subject of any other Cause of Action, pending in any other court, or of a pending Arbitration Proceeding, nor is any other Cause of Action or Arbitration Proceeding contemplated: 1. OTHER ACTIONSPENDING If Yes Parties to other Pending Actions Superior Court, Docket No.: A. In my opinion, the following parties should Be joined in the within pending Cause of ActionParties contemplated to be joined in other Causes ofAction. 3. PROCEEDIMES A. If Yes Parties to Arbitration Proceedings B. In my opinion, the following parties should Be joined in the pending Arbitration Proceedings. 4. OTHER ARBITRATION PROCEEDINGS A. If Yes Parties contemplated to be joined to Arbitration Proceedings. In the event that, during the pendency of the within Cause of Action, I shall become aware of any change as to the facts stated herein, I shall file an amended certification and serve a copy thereof on all other parties (or their attorneys) who have appeared in said Cause of Action. Dated: October 3, 2018 William Matsikoudis, Esq. Matsikoudis Fanciullo, LLC 128 Monticello Ave, STR 1 Jersey City, 07304 HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 37 of 41 Trans ID: LCV20181724869 From: Norma Garcia Sent: Thursday, September 20, 2018 3:22:05 PM To: Rolando Lavarro Cc: Michael Yun; Peter Baker; Vernon Richardson; Nick Strasser; Robert Byrne; Stevie D. Chambers Subject: RE: Ord. No. 18-111/18-112 Council President, In reviewing the Rules of Council, it is clear that the Ordinance failed a ?rst reading and should not be placed before the Council for a second reading on September 26, 2018. Speci?cally, Section A3504 3 Rule XI: Quorum sets forth: A. A majority of the full membership of the Council shall constitute a quorum. No ordinance shall be adopted by the Council without the af?rrnative vote of a majority of the full membership thereof, and all other matters may be adopted by a majority of the members resent, except as speci?cally provided otherwise by law. (Emphasis added) Moreover, reliance upon the Jersey City Council Rules which address an abstention as being deemed a neutral position on the matter is not dispositive of the issue at hand as the requirement is for ?a majority of members present.? An abstention does not equate to an absence. As such, it would be contrary to the Rules to place the Ordinance(s) on the agenda for a second reading on September 26, 2018. Be well, Norma From: Rolando Lavarro Sent: Thursday, September 20, 2018 2:46 PM To: Norma Garcia Subject: Re: Ord. No. 18-111/18-112 I discussed the matter with Councilman Yun and Vernon Richardson. They are seeking to have the ordinance on the agenda for second reading. Please don?t publish the agenda until you address this question. Rolando Rolando R. Lavarro, Jr. Council President 2.80 Grove Street Jersey CitV. NJ 07302 Ph: 201-547-5268 Email: rlavarroi?riijcnj.org HUD-L-003957-18 10/03/2018 1:25:59 PM Pg 38 of 41 Trans ID: LCV20181724869 Please be advised that any emails, including attachments, you send to the City of Jersey City its directors, of?cers, and employees are government records that are subject to disclosure upon request under the New Jersey Open Public Records Act and other State law or court order. The City greatly appreciates your communications and is committed to protecting private information you may share with it. Therefore, personal information such as social security numbers, medical information, unlisted telephone numbers, and driver?s license numbers contained in emails will be protected by the City to the fullest extent of the law. Sent from my iPhone On Sep 20, 2018, at 1:49 PM, Norma Garcia wrote: Good afternoon Councilman, Please advise as to whether you are requesting the Ordinance(s) be placed on the agenda as a first or second reading. Thank you, Norma From: Michael Yun Sent: Thursday, September 20, 2018 12:13 PM To: Peter Baker Rolando Lavarro Subject: Request to Reintroduce Ord. No. 18-111/18-112 Peter, Please see the email below from Councilman Yun?s office. Councilman Yun has requested that ordinances 18-111 and 18-112 be reintroduced for consideration by the Council. Please advise ASAP. Thank you, Rolando Rolando R. Lavarro, Jr. Council President 280 Grove Street Jersey City, NJ 07302 Ph: 201-547?5268 Email: rlavarroQicn'rorg Please be advised that any emails, including attachments, you send to the City ofJersey City its directors, officers, and employees are government records that are subject to disclosure upon request under the New Jersey Open Public Records Act and other State law or court order. The City greatly appreciates your communications and is committed to protecting private information you may share with it. Therefore, personal information such as social security numbers, medical information, unlisted telephone numbers, and driver?s license numbers contained in emails will be protected by the City to the fullest extent of the law. From: Vernon Richardson Sent: Wednesday, September 19, 2018 11:06 AM To: Rolando Lavarro