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Kyriacou v. Lavin

2006 WL 349651 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; TESTIMONY — Statements made by a land use board’s engineers comprised of explanations of information already supplied to the board are not testimony, and therefore need not be given under oath.

A homeowner wanted to build on his lot, but was required to seek a variance because the lot had insufficient frontage. At zoning board hearings, municipal engineers made unsworn statements. Objectors appealed the grant of the variance, claiming the board’s decision should be invalidated because it rested on the engineers’ unsworn testimony. On appeal, the homeowner argued: (1) the engineers did not have to be sworn because they were not fact witnesses but rather were municipal officers providing advice to the board in their official capacity; (2) the objectors waived their right to object that the engineers were not sworn because their attorneys were present at the zoning board hearing and had opportunity to object at that time; and (3) the engineers had limited involvement in the hearings with no impact on the board’s decision, which was otherwise supported by the record.

The failure to swear in an engineer does not require reversal of the board’s decision. Not all errors mandate a reversal. Reversal is warranted only when the error has the potential to impact upon a fair result. Here, the Appellate Division found the engineers’ statements were of a nature that did not concern the purpose of the application, and that the statements did not contain any facts within the personal knowledge of the engineers. As such, the statements were not testimony, but rather explanations of information already supplied to the board. The objectors further claimed that because the engineers’ statements were not given under oath, they could not be used against the homeowner at trial. The objectors provided no evidence as to why they could not simply call the engineers as witnesses at trial, or even that the engineers’ testimony at trial would differ from their statements made during the zoning hearing. Therefore, the Court found no prejudice to the objectors. Additionally, the Court found adequate evidence to support the board’s decision. Further, the homeowner was not at fault and any prejudice suffered by the objectors was diminimus.

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