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Gunthner v. Planning Board of the Borough of Bay Head

335 N.J. Super. 452, 762 A.2d 710 (Law Div. 2000)

ZONING; CONFLICTS OF INTEREST—If a consolidated land use board lacks a quorum by reason of member’s conflicts of interest, the conflicted members may participate in, and vote on, the affected matter.

A property owner sought to create eight residential lots within a marina. Notice of its planning board application was served on an adjacent yacht club, whereupon a member of the yacht club expressed interest in acquiring a defaulted note and mortgage on the applicant’s property so as to acquire the property itself. He intended to use a portion of the property for a boat museum, and the other portion to provide additional parking for the yacht club. The municipality utilized a consolidated land use board, instead of a separate planning board and separate zoning board. Six of the nine regular members of the consolidated board and one of its two alternate members were members of the yacht club. The applicant, fearing that it could not get a fair and impartial adjudication before the board, applied to the court for an order to disqualify those seven yacht club board members. The thrust of the issue was whether the board members, who were also members of the yacht club, were in conflict to decide the application, notwithstanding their certifications that they could do so fairly and impartially. According to case law, the definition of a conflict of interest involves the principle that no “local government officer or employee shall act in his official capacity in any matter where he, a member of his family, or a business organization in which he has an interest, has a direct or indirect financial or personal involvement that might reasonably be expected to impair his objectivity or independence in judgment.” Following this precedent and using what it called “a common sense review,” the Court found that the yacht club members were involved in the matter. This finding, however, led to a particular problem because the Municipal Land Use Law (MLUL) does not permit a municipality to delegate its zoning power to other than a planning board or a zoning board. And, if a planning board lacks a quorum, the MLUL only provides that members of the zoning board may act as temporary planning board members in order to achieve a quorum. Here, however, with a consolidated board, no New Jersey law provides for a replacement of members should no quorum be possible. Given this set of circumstances, the applicant argued that because it could not get a review of its application within ninety-five days of its application, it should benefit from the law that approval is automatically granted. The Court, however, reviewed the default statute and held that its aim was “to prevent boards from delaying or harassing developers in order to extract unwarranted conditions from ‘legitimate development plans.’” Here, that was not the case. According to the Court, the developer was “seeking a loophole to compel automatic approval, thereby depriving the board of the opportunity to ensure that the public interest is adequately protected by a thorough review of the application.” Consequently, the Court held that “notwithstanding their conflict, the members of the Board should be able to rule on the plaintiff’s application consistent with their duty to protect the public interest. Unwarranted default approval provides the justification for use of the doctrine of necessity. ... The court stands as the plaintiff’s safeguard against any potential arbitrary result at the municipality level.”

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