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Gagnon v. Mayor and Council of the Borough of Point Pleasant Beach

A-6893-00T1 (N.J. Super. App. Div. 2002) (Unpublished)

ZONING; VOTING— The requirement that a previously absent but now voting zoning board member must file a certification that he or she reviewed the transcripts can be satisfied by filing that certification even after the vote is taken or during the course of subsequent litigation.

A municipal zoning board of adjustment approved a nonconforming use determination and a use variance, but one of the voting board members had not attended any of the hearings. Although it was a matter of some contention, it appeared that an objecting neighbor’s attorney was told by the board’s attorney that the board member who had not attended the hearings listened to the transcripts of them. What was at issue, however, was the New Jersey statute that only permits a board member to vote if the “board member has available to him the transcript or recording of all of the hearings from which he was absent or was not a member, and certifies in writing to the board that he has read such transcripts or listened to such recording.” No such certification was given to the board before the vote took place. Although a certification was eventually given, it was given after the objecting neighbor filed a complaint in lieu of prerogative writ challenging both the nonconforming use determination and the use variance. The lower court believed that “in the context of this case” it could not waive the absence of the certification on the record even if an oral declaration had been made by the board’s counsel. The Appellate Division, recognizing the existence of a prior case where the Appellate Division said “that the failure of a voting board member to supply a written certification that he had read the transcripts of two prior hearings he had not attended disqualified his vote,” did not think the result should have occurred in this case. This is because a written certification was filed, albeit after the fact, leaving the Court to consider the late filing of the written certification “as a procedural deviation not justifying disqualification of the board member’s vote, particularly since [the objecting neighbor’s counsel] chose not to question the vote knowing of the potential deviation.”

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