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Christensen v. Maplewood Township Board of Adjustment

A-763-03T2 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; CONFLICTS; WITHDRAWAL—The presence on a land use board of the campaign treasurer of an applicant’s election opponent gives rise to an impermissible appearance of conflict or impropriety and remand is the remedy, but the applicant is not permitted to withdraw its application.

A home had been used as a bed and breakfast before the local zoning ordinance had been adopted in 1922. This use continued until 1931 or 1933, but not after 1933. In 1998, the municipal construction official wrote to the home’s owner that use of the property as a bed and breakfast violated the municipality’s zoning ordinance. Then, after looking over some documents, the official decided that the continued operation of the business was a permitted nonconforming use. In 2002, however, the municipality’s attorney advised the owner that the construction official did not have authority to make that decision and that an application to the zoning board was necessary. The owner then applied to the board for permission to continue a nonconforming use.

After hearings, the board let the municipality’s attorney question the owner regarding the bed and breakfast’s operation. The owner’s attorney objected to the questions, asking the board to bar the municipality’s attorney’s further participation and to strike his questions and statements. The municipality’s attorney agreed not to participate further, but the board denied the request to strike the testimony even though it found the questions irrelevant to the application.

At the same time, the application was pending before the board, the owner was running for election to the municipality’s governing body. The board member who was the principal objector to the application was the campaign treasurer for the applicant’s election opponent. By a split vote, 4-3, the board decided that the premises had been used as a bed and breakfast before the adoption of the municipality’s zoning ordinance, but that the use had been abandoned. Thus, it denied the application. The board member who was the opposition candidate’s treasurer voted against the applicant on both issues.

The applicant appealed, seeking review of the board’s decision on the basis that it was arbitrary and capricious. The applicant also argued improper participation by the municipality’s attorney, and asserted that the campaign treasurer should have recused himself. The lower court denied the recusal application on the basis that the board member’s political activities were not sufficient to require recusal. However, the Court granted summary judgment with respect to the participation of the municipality’s attorney. It remanded to the board for new proceedings because
the proceedings before the board were tainted by the municipal attorney’s participation.

On further appeal, the Appellate Division held that the participation of the “conflicted” board member was troublesome and created a potential conflict of interest or, at the very least, an appearance of impropriety. It then rejected the applicant’s argument that the lower court erred in remanding the case regarding the issue of abandonment, and held that it was up to the board to determine such an issue. The Court also rejected the applicant’s claim that he should have been allowed to withdraw his application. N.J.S.A. 40:55D-68 states that a person interested in any land upon which a nonconforming use or structure exists “may” apply in writing for the issuance of a certification. The applicant argued that the use of the word “may” allowed him the option not to proceed further. The Court rejected that interpretation, holding that use of “may” provided an applicant with the option to apply for a certification, instead of being in violation of the ordinance. To allow withdrawal would allow the possibly inappropriate or illegal use to continue.


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