Posted by: Patricia Salkin | November 19, 2019

NJ Appeals Court Remands Matter to Determine with Zoning Board Members Had a Prohibited Conflict of Interest Based on Membership in Mayor’s Civic Association Given Mayor’s Opposition to the Application

This post was authored by Andrew Markland, Touro Law Center

From 2001 until 2014 Alvarez rented a commercial space, under the name Panorama Live Poultry Market Corp., with Alvarez’s wife running the day to day business. In 2014, the landlord of the commercial space raised the rent so Alvarez’s ceased leasing the space. In 2015,  Alvarez found a new location suitable for the business, however the land was in a residential use district and would need a use variance to use the new location as a live poultry mart. Mr. Alvarez, believing he needed to receive the Mayor’s blessing met with the Mayor.  Mayor Stack properly directed the Alvarez’s to the zoning board but stated that he had no objections. The Alvarez’s then acquired a loan to purchase the property, formed “Central 25, LLC, and submitted an application for a use variance to operate as (1) a fish market and (2) a live poultry mart. The zoning board set November 7, 2015, as the date for public hearing and the Board’s attorney recused himself because his family owned the building.

 

Before the hearing, on official Mayor’s letterhead, the Mayor circulated letters in opposition to granting the use variance requested. The letter stated that the Mayor had no input and that the neighbors of the surrounding area should attend the meeting and let their voices “be heard.” Eleven members of the public testified at the public session and six members of the zoning board voted to deny the application and one member voted to approve. Plaintiff then filed this action arguing that the decision to deny the application should be reversed because: the decision was arbitrary and capricious; the resolution memorializing the denial of the application did not include findings of fact and conclusion based thereon; the mayor’s improper interference in the application process irreparably tainted the Board’s impartiality and denied plaintiff a fair hearing.

 

The issue before the Court was whether any member of the board who voted to deny the application had a personal interest that might reasonably impair their objectivity or independence of judgment. At the time of the hearing three of the voting board members were officers and trustees of the “Brian Stack Civic Association.” Plaintiff  argued that the Board members membership and participation in the Mayor’s Civic Association should have been disclosed and the members should have recused themselves because of an impermissible conflict of interest. The lower court determined that this claim was without merit. To determine if there was a conflict of interest that required recusal the Court followed the ruling in Piscitelli v. City of Garfield Zoning Board of Adjustment that found three source of authority: (1) the Local Government Ethics Law, N.J.S.A 40A:9-22.2; (2) the Municipal Land Use Law, N.J.S.A. 40:55d-69; (3) the common law. In applying the Local Government Ethics Law the Court noted that no local government officer shall act in his official capacity which he has an interest of direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence of judgment. In the second source of authority the Court noted that no member of the board of adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest. In the third source of authority, the Court said that a trier of fact must inquire if a disqualifying conflict is present without any probing into an official’s motive because the ultimate goal is to ensure not only impartial justice but also public confidence in the integrity of the proceedings.

 

Because the record did not provide sufficient information surrounding the three board members who were officers and trustees of the “Brian Stack Civic Association” the Court reversed and remanded the case to the Law Division to determine if the three board members had a conflict of interest because of the Mayor’s aggressive opposition.

 

Central 25, LLC v. Zoning Board of City of Union City, 460 N.J.Super. 446 (2019).


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