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Klug v. Bridgewater Township Planning Board

407 N.J. Super. 1, 968 A.2d 1230 (App. Div. 2009)

ZONING; CONFLICTS OF INTEREST — When an applicant’s expert, who prepared material for an application, is then hired by the municipality as its planner, neither the applicant nor the land use board may realize the work product of or otherwise involve, that planner-expert.

A developer applied to a municipal planning board for major subdivision approval to subdivide its property into nine lots. As part of its application, it submitted an environmental impact statement. When the developer was advised by the New Jersey Department of Environmental Protection that the property contained wetlands of intermediate resource value, the developer revised its application to provide for the subdivision of its property into eight lots. While the hearing on the revised application was pending, the consultant who prepared the developer’s environmental impact statement was hired by the municipality as its own planner. In her capacity as planner, the developer’s former consultant prepared a memorandum outlining certain planning issues and considerations with respect to the approval of the project. The planner did not participate in any further hearings with respect to the application. After the planning board approved the subdivision application, a neighbor filed a complaint challenging the approval. The lower court found that the revised application submitted by the developer was a new application, that it complied with all applicable zoning ordinances, and that it did not require any variances. However, the lower court found that the planner’s involvement in the process constituted a potential conflict of interest. Therefore, the lower court remanded the application back to the planning board for reconsideration without considering the environmental impact statement or memorandum prepared by the developer’s former consultant. The lower court permitted the planning board to obtain and consider a new environmental impact statement in re-evaluating the developer’s application.

The planning board retained a special planner with respect to the application. It considered the new environmental impact statement, as well as the opinion of the neighbor’s consultants, before approving the developer’s subdivision application with certain conditions. The neighbors challenged the planning board’s approval, arguing that the planning board’s approval was arbitrary, capricious, and unreasonable. Further, the neighbor claimed that, as a result of the planner’s conflict of interest, the application was tainted and the developer should have been required to submit a new application. On appeal, the Appellate Division affirmed, agreeing that the planner, who had previously prepared an environmental impact statement for the developer in connection with the application, had a conflict of interest. However, the Court found that the conflict of interest did not require the developer to start from scratch and submit a new application. It distinguished the case from another conflict case where a planner continued to represent an applicant after being appointed as planner. In that case, the conflict and taint were evident. In this case, however, except for one memorandum she provided to the planning board, the planner recused herself from proceedings, did not participate in them, and did not continue representing the developer. In addition, when the matter was remanded to the planning board for reconsideration, it was before almost an entirely new planning board. The new planning board retained a special planner for the purpose of reviewing the application, and also considered a new environmental impact statement prepared by a different consultant. The Court found that, under these circumstances, any potential taint to the integrity of the process was cleared up based on the review of the application by new planning board members, with the review of a different planner, and based on a new environmental impact statement. Therefore, it did not believe the submission of a new application, with new hearings, was warranted.

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