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Kyriacou v. Lavin

A-1647-06T2 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; CONFLICTS OF INTEREST — The legal test for determining if a land use board member has a conflict of interest is whether there is the potential for conflict and not whether there is any actual conflict or dishonest action.

Two buyers contracted to purchase two lots, and applied for variances for each lot. They intended to build houses on each lot and sought variances for both of them because neither met street frontage requirements. After the variances were granted by the zoning board, two objectors who had testified against the variances brought an action in the lower court. The lower court reversed the board’s approval. On appeal, the Appellate Division reversed the lower court’s decision. The matter was further appealed to the New Jersey Supreme Court, which remanded it to the lower court. On remand to the lower court for specific determinations, the variance was again affirmed.

On further appeal, the Appellate Division agreed with the objectors’ argument that a political relationship between one of the buyers and a member of the board created a conflict of interest. Ten years earlier the buyer had chaired the board member’s campaign committee. The board member did not vote on the application, but was present at three of the hearings. The lower court had found that the relationship was too remote given that the board member’s campaign occurred ten years earlier. Nonetheless, according to precedent, the legal question was whether there was the potential for conflict and not whether there was any actual conflict or dishonest action. As a result, the Appellate Division again remanded the matter to the board for a rehearing without the participation of the board member.

The objectors also argued on appeal that the board did not have the jurisdiction to grant the variances because the two lots had previously been merged with a third lot and, as a result, the previous owner did not have the right to convey the two lots to the buyers. The Court noted that, at the relevant time in question, adjoining nonconforming lots owned the same owner were considered merged into one conforming lot and required subdivision before any of the individual lots could be sold. Since the question of merger had not been before the board during the hearings on the buyers’ initial variance request, the Court directed the board to consider, on remand, whether the lots ever met the criteria for merger and stressed the importance of determining whether the lots were owned by a single party at the time of the purported merger. Based on its findings and conclusions, the Court remanded the matter for a rehearing without the participation of the “conflicted” board member and directed the board to include the question of whether the lots had been merged.

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