Posted by: Patricia Salkin | August 6, 2019

NJ Appeals Court Remands Ethics Case to Ascertain Whether Two Zoning Board Members Had a Conflict of Interest Based on their Involvement with the Mayor’s Civic Association Given the Mayor’s Potential Involvement in the Matter

This post was authored by Touro Law student Thomas Brown ‘20


When Manuel Alvarez could no longer afford the rising rent for his meat supply shop on Bergenline Avenue in Union City, he found a new location on Central Avenue. This space was in a residential zone, so he needed to appear before the Union City Zoning Board for a use variance. Before the hearing, Mr. Alvarez claims to have spoken to the mayor, Brian Stack, who was open to the idea but noted that it was “[N]ot his decision. It was up to the … Zoning Board members, but that he had no objections.”


However, as the Zoning Board hearing approached, neighbors received letters with the mayor’s seal, supposedly from his office, regarding the new proposed site for the storefront and his opposition to it.


After the hearings, the variance was ultimately denied, and Mr. Alvarez and his wife appealed. The central ethical question concerned whether two board members, Victor Grullon and Margarita Gutierrez, should have recused themselves from the process. At the time of the hearing, Ms. Gutierrez served as the CEO of the mayor’s civic association, the Brian Stack Civic Association, and Mr. Grullon was its Vice-President. With the mayor’s opposition to the proposal common knowledge, the plaintiff’s argued that the two board members were conflicted based on their close ties to the mayor.


The appellate court discussed the higher court’s recent decision in Piscitelli v. City of Garfield Zoning Bd. Of Adjustment, 237 N.J. 333, 205 A.3d 183 (2019), as an analogous case and recited its facts in detail. In that case, members of the zoning board also sat on the education board, which was under the leadership of someone with a financial interest in the issue before the board. However, the court determined that more facts had to be gathered regarding the nature of the possible conflicts in order for an ultimate decision to be made.


In this instance, the court came to a similar conclusion, deciding that more facts were needed concerning the nature of the board members’ involvement in the association. The trial court judge had to determine “whether the Mayor’s aggressive advocacy against the granting of plaintiff’s application created reasonable grounds to establish a conflict of interest…under N.J.S.A. 40A:9-22.2 [the Local Government Ethics Law] and/or provided reasonable grounds under the common law for the public to doubt the impartiality of these two Board members” (at *10).


The court referenced Justice Albin’s statutory interpretations in Piscitelli: “the ultimate goal is to ensure not only impartial justice but also public confidence in the integrity of the proceedings”; the question is not “whether a public official has acted dishonestly or has sought to further a personal or financial interest; the decisive factor is ‘whether there is a potential for conflict.’” Piscitelli, 237 N.J. at 352-53, 205 A.3d 183.


Central 25, LLC v Zoning Board of the City of Union City, 2019 WL 3310016 (NJ App. 7/24/2019).


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