Council Unanimously Overrides Borough's First Veto

The Chatham Borough Council voted unanimously Monday night to override Mayor Nelson Vaughan's veto of the amendments to the sign ordinance.

The amendments to the sign ordinance passed unanimously on second reading at the Oct. 11 meeting. It includes several restrictions to political signs that were part of the original ordinance, including a limiting size to no more than 4-feet squared and can be displayed for no more than 30 days. It also prohibits billboards in the borough.

At the Sept. 26 meeting, borough resident Ed DiFiglia told the council the ordinance could be construed as limiting political speech. He said the ordinance could be challenged and overturned in court.

Vaughan exercised his right of veto, the first mayoral veto in the borough's history, due to these issues. He said the limitations were unconstitutional and left the borough open to a potential lawsuit.

His letter to the council vetoing the ordinance is dated Oct. 19. It reads in part:

"I have serious concerns over the constitutionality of certain provisions contained within the [o]rdinance. Those concerns are shared by our Borough Attorney and were also recently raised by a Borough resident who has also involved the American Civil Liberties Union. Specifically, my concerns relate to the regulation of 'political' signs ... I am convinced that these restrictions, as currently set forth, ... would not survive a constitutional challenge which, at this time, appears inevitable."

Vaughan attempted a "conditional veto." A letter from Borough Attorney Joe Bell dated Oct. 21 states that, in his opinion, such a veto would "effectively [terminate] the legislation" similar to a gubernatorial conditional veto.

"A conditional veto simply notifies the legislative body of the objectionable provisions...to allow the legislative body to re-enact legislation that would be approved [unless there is an override]," Bell wrote in his letter. "New legislation must be adopted which will meet with the [mayor's] approval."

Council Member Bruce Harris said the veto was an unnecessary step to correcting the limits to political signs because with the veto, the law would automatically revert to the preexisting ordinance which includes the same limitations. "The veto does nothing," he said. "The restrictions remain. The veto does not [achieve] its effect."

Harris is the council's liaison to the Planning Board, which sent the ordinance to the council for approval and passage into law. He said the Planning Board attorney, Anne Marie Rizzuto, and Bell were both uncertain about the constitutionality of the restrictions to political signs. Quoting from an Aug. 6, 2008 email from Bell to the council, Harris said Bell pointed out that "it is unclear" whether the restrictions would violate constitutional rights to free speech.

Bell was absent from the meeting Monday. Kelly Miller, an attorney from his firm, quoted from another email from Bell sent to council on Sept. 12 of this year that, "certainly, the borough is entitled to adopt the ordinance as proposed."

Council President James Lonergan asked Miller what the power the veto holds since the existing law contains the same restrictions. "Why have a veto if it doesn't change the objectionable thing?" he asked.

Vaughan responded, "just because you make a mistake once doesn't mean you should make it again."

Override

Council Member James Collander made a motion that the council override Vaughan's veto and then create a subcommittee responsible for seeking an outside opinion on the ordinance's constitutionality. Lonergan, Collander and Council Member Vicki Fife agreed to sit on the subcommittee, with a deadline of Nov. 28 to introduce any changes to the ordinance for first reading. An ordinance introduced later than that would not pass before January.

The six council members unanimously overrode the veto, scaling the two-thirds majority necessary.

Vaughan said the veto, regardless of the override, "accomplished exactly what I wanted it to," because it forced the council to address the potentially unconstitutional passages. "It makes no sense to pass laws that would clearly be at risk."

Council members also alleged that DiFiglia was Vaughan's campaign manager for the upcoming election. Vaughan denied this and clarified that DiFiglia is the chairman of the Chatham Borough Democrats. Vaughan also confirmed that DiFiglia had contacted the ACLU, but as a reference for whether the ordinance could be deemed unconstitutional.

Public Comments

Several members of the public spoke about the ordinance with conflicting points of view. Planning Board members Donna Cali-Charles and H.H. Montague both said the board had expressed similar concerns during their discussions of the ordinance over the past two years. Because they had received conflicting information, they decided to pass the ordinance to the council for a final decision on whether the restrictions should be changed.

Cali-Charles said she favored the restrictions as written, and asked council members to compare the size and presence of signs in Chatham Borough to towns such as Hanover and Florham Park.

"They have huge signs with pictures, and it made me angry to think that we could have those kinds of signs in Chatham," she said.

Doug Herbert, a from the Democratic party, told the council he hoped the veto would stand until the restrictions were removed.

"I urge that you not override the veto tonight [and that you change the language] as quickly as possible," he said. "There could be causes of action that arise out of this election season."

Council members responded by saying the restrictions would still stand, since the previous ordinance contained the same language.

Minutes from the Aug. 3 Planning Board meeting include the following, regarding the sign ordinance:

"[Planning Board Attorney] Rizzuto inserted langauge specifying that a political sign can measure 4 sq. ft., may be displayed for a maximum of 30 days before the subject election and must be removed five (5) days after the subject election. Councilman Harris noted that Borough Attorney [Joe Bell] felt this particular prohibition may be unconstitutional. Ms. Rizzuto then added language that the Borough Council could make the final decision on this matter."

It then went to the council and was sent back for revisions several times before the first reading in the council meeting on Sept. 26.