Posted by: Patricia Salkin | August 6, 2009

Planner’s Conflict of Interest Does Not Require Submission of New Application

Plaintiffs appealed the grant of a preliminary major subdivision alleging, among other things, that the Township planner had a conflict of interest since the initial environmental impact statement (EIS) was prepared by the planner prior to her appointment as the Township a planner. After being informed that the 12.46-acre tract contained wetlands of intermediate resource value, the developer revised his subdivision plan to request eight lots instead of none. The now newly appointed Township planner, attended hearings on the application but did not participate, and her written input did not address the merits of the application. The board approved the application.

The trial court vacated, stating that the board’s discretion was limited because the plan did not require any variance or waiver, but that the planner’s involvement constituted a potential conflict of interest. The court ordered reconsideration without consideration of the EIS or a memo written by the planner. On remand, a newly constituted board retained a special planner, who reported that no waivers or variances were needed; obtained a new EIS; and approved the application subject to conditions. The trial court upheld the approval.

The appeals court affirmed, holding that the board considered ample evidence and that the approval was not arbitrary. The prior decision vacating the approval did not require that the developer file a completely new application. The Court said that there was no doubt that the Township planner had a conflict of interest, and that the inquiry before the Court concerns the appropriate remedy. The Court decline to require a complete “do over” of the application review, noting that they have flexibility in fashioning remedies under the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 et seq. Noting that in this case there was no direct financial conflict or direct participation in consideration of the application, and that a newly constituted board (all members except for one were new and had not ruled on the previous application) found the new EIS (which the Township planner was not involved with) was credible, the appeals court concluded that the decision below maintained the integrity of the process.

Klug v. Bridgewater Twp. Planning Bd., 968 A.2d 1230 (N.J.App. 5/1/2009).

The opinion can be accessed at: http://lawlibrary.rutgers.edu/courts/appellate/a5176-06.opn.html


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