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Haggerty v. Red Bank Borough Zoning Board of Adjustment

385 N.J. Super. 501, 897 A.2d 1094 (App. Div. 2006)

ZONING; CONFLICTS OF INTEREST — Where a member of a land use board is the child of an attorney, even in an of counsel relationship, at a law firm that previously represented an applicant, that board member must recuse himself or herself.

Seeking a density variance, a builder submitted an application to the municipality’s zoning board. The board chairman recused himself because he was a partner at a law firm that had previously represented the applicant. The vice-chairwoman served as acting chairperson. Her father, a retired Superior Court Judge, served in an “of counsel” capacity at the same law firm as the board’s chairman. The board approved the density variance application. Thereafter, the builder submitted applications for site plan and bulk variance approvals, which the board approved. Interveners alleged that the vice-chairwoman should have recused herself, and her failure to do so tainted the process, invalidating the board’s approvals.

The interveners filed their complaint more than nine months following the statutory deadline for challenging the approval of the density variance. Nonetheless, the issue of a disqualifying conflict goes to the fundamental integrity of the proceedings and may be raised on appeal, even though no separate appeal was filed at the conclusion of the density variance hearing. In fact, a timely appeal at the conclusion of all of the board’s hearings related to the proposed development may raise a disqualification issue that affects earlier board decisions. In each case, the question raised is whether a potential for conflict exists, not whether the conflict actually influenced the board’s decision. A conflict of interest arises when a public official has an interest not shared in common with the other members of the public. However, a remote and speculative interest will not disqualify the public official. There are four situations requiring disqualification—when a public official has (1) a direct financial interest (voting on a matter bearing on the official’s own property or affording direct financial gain); (2) an indirect financial interest (e.g., financially benefitting someone closely tied to the public official); (3) a direct personal interest (e.g., the matter benefits a blood relative or close friend in a non-financial way); and (4) an indirect personal interest (e.g., the public official’s judgment may be affected because of membership in some organization and a desire to help that organization). According to the Court, a person in an “of counsel” relationship with a law firm has a sufficient financial stake in the firm as to impute to such person any disqualification of the firm arising from client representation by partners or associates of the firm. The fact that the vice-chairwoman was an adult living independent of her father did not sever this relationship. Because the retired judge and the board’s chairman worked for the same law firm, the vice-chairwoman was on actual notice of the conflict when the chairman recused himself. Consequently, the board’s findings were set aside; the judgment of the lower court is reversed; and the matter was remanded to the board for new hearings.

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