In Whiteman v. Township Council of Berkeley Township (A-40-24/089641) (Decided July 10, 2025), the Supreme Court of New Jersey held that South Seaside Park can secede from Berkeley Township. According to the unanimous Court, the Berkeley Township Planning Board failed to independently evaluate the merits of a deannexation petition and make an objective recommendation to the municipality’s governing body. Additionally, the residents of South Seaside Park met the legal burden required for secession under state law.
Facts of Whiteman v. Township Council of Berkeley Township
On September 22, 2014, plaintiffs Donald Whiteman, Patricia A. Dolobacs, Judith A. Erdman, and 282 other residents of South Seaside Park, representing approximately sixty-six percent of the 435 registered voters in South Seaside Park, submitted to the Berkeley Township Council a petition “seeking annexation by Seaside Park Borough and deannexation from Berkeley Township.” In support, plaintiffs presented evidence that 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.
The Council referred the petition to the Planning Board. Beginning on January 15, 2015, and ending on February 7, 2019, the Planning Board conducted thirty-eight hearings. Pursuant to N.J.S.A. 40A:7-12, 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. However, as explained in the New Jersey Supreme Court’s opinion, the Planning Board retained a professional planner who did not remain impartial, but rather 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.
During the hearings, plaintiffs presented the expert opinion of a professional planner, who testified that the Township had provided deficient services to South Seaside Park residents and had otherwise disregarded their needs. The planner opined that approval of the proposed deannexation would benefit the majority of South Seaside Park residents; that refusal to allow deannexation would be detrimental to the economic and social well-being of a majority of South Seaside Park residents; that deannexation would not cause a significant injury to the economic and social well-being of the Township; and that deannexation would not have a detrimental negative impact on the Township’s master plan, zone plan, affordable housing plan, or 2020 Vision Statement. Plaintiffs’ financial expert witness explained that the Township’s loss of taxes through deannexation would be offset, in part or in whole, by the Township’s savings on police services.
The Township’s expert witness on planning disputed the contention that the Township would suffer no harm if South Seaside Park were deannexed, and its Chief Financial Officer and Treasurer opined that deannexation would give rise to a tax increase of $147.63 for the average single-family home in the Township. In rebuttal, plaintiffs presented the testimony of a second professional planner, who testified that deannexation of South Seaside Park would not harm the Township, but that South Seaside Park’s residents would be harmed if deannexation were denied.
In August 2020, the Planning Board adopted a resolution recommending that the Township should deny the petition. By resolution dated September 21, 2020, the Township Council denied the petition, “relying on the well-supported findings” stated by the Planning Board in its resolution. Plaintiffs filed this action, seeking judicial review of the Council’s denial of their petition.
The trial court found that plaintiffs had met their burden of proof with under N.J.S.A. 40A:7-12.1. It provides that, to challenge the denial of a petition, “the petitioners have the burden of establishing [1] that the refusal to consent to the petition was arbitrary or unreasonable, [2] that refusal to consent to the annexation is detrimental to the economic and social well-being of a majority of the residents of the affected land, and [3] that the annexation will not cause a significant injury to the well-being of the municipality in which the land is located.” The Appellate Division affirmed.
NJ Supreme Court’s Decision in Whiteman v. Township Council of Berkeley Township
The New Jersey Supreme Court also affirmed. “We view 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. That did not occur in this case,” Justice Anne Patterson wrote. “We agree with the trial court and Appellate Division that plaintiffs met their burden of proof with respect to all three prongs of N.J.S.A. 40A:7-12.1, and that the trial court properly ordered deannexation.”
In reaching its decision, the New Jersey Supreme Court addressed each of N.J.S.A. 40A:7-12.1’s three prongs. With regard to the first prong, the Court agreed that Planning Board failed to conduct itself fairly and impartially. Justice Patterson explained:
As the trial court and Appellate Division found, the Board’s planner coordinated the litigation on the Township’s behalf, annotating transcripts, suggesting themes for the Township’s rebuttal of plaintiffs’ evidence, and helping Township witnesses prepare for their testimony. We concur with the Appellate Division that the 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.” By virtue of that conduct, plaintiffs were denied a fair and impartial hearing on their petition.
The New Jersey Supreme Court also concurred with the trial court and Appellate Division that plaintiffs met their burden with respect to N.J.S.A. 40A:7-12.1’s second prong, relying heavily on the distance between South Seaside Park and the remainder of the land in the Township as well as the effort required for residents to traverse seven municipalities and reach the mainland, where virtually all municipal facilities are located. “We agree with the Appellate Division that the trial court’s findings on this issue are based on substantial evidence in the record, including fact and expert testimony on the social and economic detriment to South Seaside Park residents if they were denied the opportunity to annex their land to Seaside Park,” Justice Patterson wrote.
Finally, the New Jersey Supreme Court agreed with the trial court and the Appellate Division that plaintiffs proved that the proposed deannexation would not cause a significant injury to the Township’s well-being. In support, Justice Patterson noted that the evidence presented to the Board supports the conclusion that any economic loss to the Township would be offset to some degree by cost savings. It found that the record also supports the trial court’s finding that the deannexation of South Seaside Park would not cause significant social harm to the Township’s remaining residents, citing the limited contact between South Seaside Park residents and their counterparts in the Township’s mainland section.
Given that the plaintiffs had satisfied their burden of proof as to all three prongs of N.J.S.A. 40A:7-12.1, the Court ruled that pursuant to N.J.S.A. 40A:7-13, plaintiffs may request that Seaside Park annex the land identified in plaintiffs’ petition for deannexation.