Posted by: Patricia Salkin | April 11, 2017

NJ Appeals Court Reverses Dismissal of Disqualifying Interest Claim Against Town Councilmember

On August 11, 2014, defendant Township of Bloomfield adopted Ordinance 3729, which appropriated $10,500,000 for the acquisition and improvement of a tract of land to be used as a public park, and authorized the issuance of $9,975,000 in Township bonds or notes to finance part of the cost. The subject property had previously been approved by the Township Planning Board for construction of a 104-unit townhouse development known as Lion Gate. The Ordinance was first introduced at a meeting chaired by defendant Nicholas Joanow, a Township Councilman, who owned a home that directly bordered the property. Joanow also cast the deciding vote approving the Ordinance at the August 11, 2014 Township Council meeting. Plaintiffs Russell Mollica, James Wollner, Ray McCarthy, and Chris Stanziale, a group of Township residents, filed a pro se action in lieu of prerogative writs challenging the validity of the Ordinance. Additionally, they sought to enjoin the Township from issuing the bonds, alleged that Joanow had a disqualifying interest when he voted on the Ordinance under both the common law and the Local Government Ethics Law (LGEL), and that the Township violated the Open Public Meetings Act (OPMA). The trial court dismissed the neighbors’ claims.

On appeal, Plaintiffs argued that Joanow should have recused himself from participating in any of the proceedings that led to the passage of the bond ordinance due to his ownership interest in property adjacent to the proposed public park created a legally insurmountable conflict of interest. Defendants responded that Councilmember Joanow was “set to gain no more than all the residents of the Township who will benefit from the creation of the public park and maintenance of open space.” The court found that the statutory standards set forth in the Municipal Land Use Law (MLUL), and in the LGEL, as well as “established common law authority,” all concluded “when a church or other organization owns property within 200 feet of a site that is the subject of a zoning application, public officials who currently serve in substantive leadership positions in the organization … are disqualified from voting on the application.” Here, Joanow had a direct personal interest since he owned property directly abutting the Lion Gate site.

The court held that Joanow’s ownership of property immediately adjacent to the Lion Gate site was sufficient in itself to disqualify him from voting on the Ordinance. Furthermore, since the disqualifying interest of Joanow was in its subject matter of the Ordinance, the court found that the remedy was to invalidate the Ordinance. As such, the court reversed the trial court’s holding, and noted that if the Council ever seeks to reintroduce the Ordinance, it would have to do so in a manner that comports with the OPMA and does not involve Councilmember Joanow in the deliberative or voting process.

Next, contrary to the fire chief’s instruction that fire lanes abut the eastern and northern sides of the commercial structure, the board approved the site plan with a fire lane in the travel lane of the parking lot, with a row of cars directly abutting the northern side of the building. The judge considered the board chairman’s testimony that he learned from a private conversation with the fire chief that the fire chief had “personal animosity” toward a McCourt employee. The judge found the chairman’s testimony credible, and therefore concluded that the fire chief’s requirement “was the result of a personal feud” and not “legitimate reasoning.” The court found that this information the chairman learned in a private conversation outside the public hearing could not justify rejecting the fire chief’s decision. Moreover, the court held that the fact that the current fire chief had not taken action to enforce the former fire chief’s position was not equivalent to demonstrating that the board’s decision was made on legally tenable grounds.

Accordingly, the trail court’s judgment was vacated, and the matter was remanded for the entry of an order requiring the board to reconsider the allowance of McCourt’s 2008 application for a special permit.

Mollica v. Township of Bloomfield, 2016 WL 6068242 (NJ App. 10/2016), cert den. 2017 WL 658259,   (NJ 2/13/2017)


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