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Meyer v. MW Red Bank, LLC

401 N.J. Super. 482, 951 A.2d 1060 (App. Div. 2008)

ZONING; CONFLICTS OF INTEREST — Where a planning board’s member’s law firm never represented an applicant and quite some time has passed since any member of that law firm represented any part owner of an applicant, there is no requirement that the board member recuse herself or himself.

A developer, originally a limited liability company, sought a variance as part of its application to redevelop a parcel as a mixed use development. The chair of the zoning board recused himself from the variance hearing on the variance because he had represented one of the developer’s part-owners in the purchase of a house. An attorney who represented objectors in a previous related matter before the board inquired whether the acting chair, who was involved with the previous matter had any conflict of interest. The acting chair said she had no conflicts of interest regarding the developer’s variance request and the board subsequently approved the developer’s variance request.

The objector’s attorney brought an action against the zoning board challenging the acting chair’s participation in the hearing on the basis that the acting chair’s father, a retired judge, held a position at same the law firm where the zoning board chair was a partner. The lower court dismissed the action, finding that any conflict of interest on the part of the chair could not be imputed to the acting chair, and that the acting chair’s father’s status at the law firm as “of counsel” could not be reasonably expected to impair the acting chair’s ability to make an unbiased determination. The lower court also found that the objector’s attorney had the opportunity to apply for a stay of the variance grant pending the outcome of the previous matter on the basis of the acting chair’s purported conflict of interest, but failed to do so. As a result, he was barred from raising the challenge to the acting chair’s participation.

On appeal, the Appellate Division pointed out that the law firm had never represented the developer and that it had been more than two years since any member of the law firm represented the part-owner of the developer or of any of its subdivisions. It also pointed out was that the acting chair’s father only had an indirect connection to the representation of the developer’s part-owner. The Court found that the chair’s decision to recuse himself from the matter was a choice he made individually. It agreed with the lower court that there was no requirement that the acting chair do the same. Additionally, it found that the attorney had the opportunity during discovery to find out any additional facts regarding the chair’s relationship to the developer’s part-owner and if the relationship improperly influenced the acting chair’s judgment. As a result of its findings, the Court upheld the zoning board’s approval of the developer’s variance request.

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