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Dolling v. The Planning Board of the Borough of Garwood

A-1935-99T5 (N.J. Super. App. Div. 2001) (Unpublished)

ZONING; HEARINGS—A land use board may have the right to bar participation of an objector for refusal to reveal the source of the objector’s funding.

A supermarket sought site plan approval, subdivision approval, variances, and waivers to construct a free-standing building. The land bridged two municipalities. The proceedings before both planning boards took two and a half years and included twenty-five hearings before one municipality and eleven joint hearings. A resident of one municipality, living about four hundred feet from the proposed site, appeared at some of the hearings, introduced an expert witness, and engaged in active cross-examination. The lower court characterized this as “a full unrestricted participation.” One municipality approved the application, but the other municipality denied it. Subsequently, the supermarket revised its plan and made a new application to the more receptive municipality. That application proposed development of land solely within the municipality. Based upon the prior hearings and several newer hearings, the new development plan was approved. The objector from the neighboring town sought to testify and participate in the later hearings, but the planning board “voted to require objectors to disclose who was financing their appearance and the basis for their standing.” The objector’s attorney responded only to the standing question and then, in a later letter, stated “[i]f your board is inclined to accept the position ... that [the objector’s] right to participate may be void because [their] position may be supported by business competitors, we will respond as we see fit. [It does] not wish to be subjected to an examination by your board ... . [It] ask[s] that you make your ruling based on the assumption that third parties including business competitors of [the supermarket], may be willing to assist in funding [the objector]. Until you have resolved this issue, we will not participate tonight.” At the hearing, the board ruled that the objector would be precluded from presenting any evidence or conducting any cross-examinations until it presented such evidence to the board. On appeal by the objector, it was clear that a number of the later hearings were not properly recorded or transcribed. The objector argued that its appeal was prejudiced by the unavailability of actual transcripts and that meeting minutes were not an adequate substitute. The lower court analyzed the effect of the missing transcripts on a meeting by meeting basis and concluded that the prejudice did not rise to a level that deprived the objector of its ability to make a meaningful appeal. The Appellate Division agreed with the lower court’s conclusion, but warned that if the same situation had taken place in a proceeding involving only one or two meetings, the same result would not necessarily be upheld. The objector also argued that the board had no right to preclude its participation based on their refusal to disclose the specific source of their funding. The Appellate Division held that it was proper for a board to raise questions about an objector’s standing as an interested party under N.J.S. 40:55D-4 and the identity of any person or entity who is funding its challenge to the application. While there is no question that an objector should have an opportunity to be heard and to cross-examine witnesses, the Court failed to see how this particular objector would have been damaged by a disclosure as to its source of funding. Accordingly, it held that the non-participation was by the objector’s own election. In doing so, the Court stood behind the lower court’s view that the board had the right to take into account the specific funding behind residential property owners who had extensively participated in the prior hearings to the extent of bringing in at least one expert witness and that the “nebulous response” received by the board might have constituted “being cute and playing games.” According to the lower court, as cited by the Appellate Division, “[t]his is not to say that a board is entitled to know full details of funding, but ... sufficient information should be furnished within the context of that case that allows the board to take into account ... .”

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