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Intellect Real Estate Development Co., L.L.C. v. Municipal Council of the Borough of Bloomingdale

A-0265-05T3 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; OPMA—When a municipality’s council violates the New Jersey Open Public Meetings Act in the way it conducts a land use variance hearing, a court, exercising sound discretion, can require the council to hold new hearings.

A real estate developer successfully applied to a municipality’s board of adjustment for a use variance. On appeal, the council of the municipality reversed the use variance; however, in hearing the matter, the council violated the New Jersey Open Public Meetings Act (OPMA). The developer filed a prerogative writ suit against the municipality’s council and its mayor.

After a one day hearing, the lower court declared the council’s reversal null and void because of its OPMA violation, remanded the appeal of the use variance back to the council to proceed anew, and declared moot the developer’s challenge to the participation of the mayor in council proceedings because of an alleged conflict of interest, because the mayor advised the court that he would not participate in any further proceedings.

On appeal, the Appellate Division affirmed the lower court’s decision, and addressed the specific argument made by the developer that the lower court should have reinstated the decision of the board of adjustment rather than remanded the matter to the council. The Court remarked that the fashioning of an appropriate remedy for violation of OPMA is committed to the sound discretion of the lower court. As such, the Court stated that the council’s actions that were found to be in violation of OPMA were not designed to endlessly protract final determination of the developer’s application or to prejudice or unduly harass its legitimate developmental plans. Short of such an extreme, the Court agreed that the municipal council should have final say in this specific application. The Court also was of the view that the mayor’s voluntary removal from all future proceedings on this matter rendered moot any issue as to whether the mayor could influence other council members going forward. The Court was not prepared to assume that the other members could not exercise their own independent judgment.


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