Posted by: Patricia Salkin | February 18, 2017

NJ Appeals Court Finds No Conflict of Interest for Township Administrator Who Had No Personal or Financial Interest in the Application

Starting in 2004, Wal-Mart sought a variety of variances and waivers needed in order to build a new store in a commercial zoning district of the Township of Egg Harbor. Years earlier in 2000, the Township had adopted an ordinance to create “minimum buffers around property perimeters for all new major site plans and subdivisions.” However, since the Township never enforced this ordinance, it was rescinded and replaced with another ordinance in 2011. Before the 2011 ordinance was adopted, the Township Administrator, Peter Miller, had testified about the ineffectiveness of the 2000 ordinance and how the 2011 ordinance would codify actual existing practices. This case began when ShopRite sued the Township to challenge its approval of Wal-Mart’s application and its adoption of the 2011 ordinance and other ordinances. At the trial level in New Jersey, David Zimmerman, ShopRite’s planning consultant, opposed the 2011 ordinance because he argued that it constituted prohibited spot zoning, and that it was only passed for the easy approval of Wal-Mart’s application, which originally required numerous variances and waivers under the 2000 ordinance. Miller, who had previously voted for Wal-Mart’s application, also testified at the Township’s witness. The trial judge upheld the 2011 ordinance.

On appeal in the New Jersey Superior Court, Appellate Division, ShopRite argued, as one of its points, that Miller’s involvement in Wal-Mart’s application approval process and his active role in the proposal and promotion of the 2011 ordinance presented a conflict of interest. Specifically, ShopRite argued that the 2011 ordinance was actually “generated by Wal-Mart’s application.” The court held that Miller did not have a conflict of interest because he had no interest in the outcome of Wal-Mart’s application whatsoever. The relevant statute allowed him to serve on the board as a municipal official. Even if it were true that Miller “actively promoted and pursued zoning changes and new ordinances while Wal–Mart’s application was pending before the Board,” the court held Miller’s lack of personal or financial interest allowed him to have a dual role in Wal-Mart’s application process and the 2011 ordinance regardless of the timing of the application and ordinance approvals.

Vill. Supermarkets, Inc. v. Twp. of Egg Harbor, 2015 WL 8481103 (N.J. Super. Ct. App. Div. 4/8/2015).


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