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Disick v. Millstone Township Planning Board

MON-L-2327-98 (N.J. Super. Law Div. 1998) (Unpublished)

ZONING; CONFLICTS OF INTEREST—A current church member, though inactive, may not sit on a planning board that hears the church’s application.

A church applied to the municipal planning board for various conditional approvals. The application was heard at a regularly scheduled meeting. The board granted the church’s request, imposing various conditions having to do with engineering items. The church then made a second application seeking to amend its prior application for site plan approval. The board granted it in its entirety, again subject to certain conditions. A neighbor appealed the board’s decision with respect to the second application. The neighbor alleged a conflict of interest. Specifically, it argued that members of the church sat as members of the planning board when the application was considered. Under New Jersey Law, where a board member is simultaneously a member of a church, synagogue or other organization, which happens to be either an applicant or objector before the board, that member must be disqualified. Whether or not a particular interest merits disqualification is a factual question. A court does not have to inquire and the challenger does not have to establish that the conflict had an actual effect on the board’s decision. On the other hand, if the membership interest consists of a former affiliation with only “occasional” or “minimal” continued attendance, there are no grounds for disqualification. Here, it was conceded that two board members had involvement as parishioners of the church. One member had attended the church in the past, but was actually a member elsewhere and typically attended a different church. The other board member, while a member of the church, was very inactive, i.e., did not attend at all regularly and did not pay regular dues.

In the case of the member who typically attended another church, the Court found no basis for disqualification. The other member, however, clearly continued to be a member of the church. The Court found that neither her inactivity in the church nor her failure to pay dues regularly was dispositive. She had a current affiliation with the church. Furthermore, since the planning board did not consider whether she had a conflict of interest (as the issue was not raised) there was no way of ascertaining her actual level of involvement. In addition, she did not make the required disclosure. The Court refused to speculate whether or not the personal interest of the board members had an effect upon the vote of the others. The mere existence of a conflict, and not its actual fact, requires that official actions be invalidated. Therefore, the Court found that the current though inactive church member should have been disqualified and that the disqualification is absolute and cannot be waived.

The neighbor also alleged that the planning board was unclear as to the purpose of the church’s application at the second hearing. The neighbor asserted that confusion at the hearing precluded the board from fully considering the actual issue before it. The Court agreed, finding that the reason for the confusion at the hearing was: (1) inadequate notice; (2) the failure of the board to make reference to the transcript of the earlier hearing; and (3) the failure to clearly establish what the subject matter would be. New Jersey statutes require that notices expressly indicate the nature of the matters to be considered. Otherwise, the public would not be fairly apprized of the nature of the meeting which would enable them to decide if they should participate in the hearing, or at the least, look more closely at the plans and other documents on file. The planning board argued that the second application was derivative of the first and therefore the second application did not need to be more specific than it was. The Court disagreed, noting that references were made in the original site plan to a “recreational/community center,” while the second application called for construction of a “parish hall.” In the Court’s opinion, a “parish hall” connotes a different structure to a layperson than a “recreational/community center does.” As a result, the Court ruled the board’s decision to be arbitrary, capricious, and unreasonable because it was not clear from either the notice or the actual proceedings what the meeting was to cover.


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