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Miller v. City of Margate

A-4858-09T4 (N.J. Super. App. Div. 2011) (Unpublished)

ZONING; CONFLICTS OF INTEREST; NOTICES — It is not a conflict of interest if an expert witness in a land use hearing lives next door to the applicant if that expert witness has no personal, financial or social relationship with his or her neighbor, nor any interest different from that of any other resident in the municipality.

Two neighbors were involved in a long-term dispute over one neighbor’s installation of a waterfront deck. In a previous decision, the Appellate Division decided that the municipality erred in granting variances that retroactively approved construction of the deck. At that time, the Court remanded the matter with instructions that the builder either remove the deck or modify it to comply with the zoning ordinance. The builder then submitted a set of plans to modify the deck. The municipal land use administrator approved those plans, but the complaining neighbor filed a motion in aid of litigant’s rights asserting that the proposed modifications were insufficient.

The lower court had determined that the proposed deck modifications were consistent with the zoning ordinance. The neighbors appealed from that decision, but the Appellate Division did not reach the consistency issue. Rather, the Court once again remanded the matter to consider whether changes to the zoning ordinance had rendered the dispute moot under the time of decision rule.

Shortly after the Appellate Division’s previous decision, the builder wrote to the municipality noting ambiguities in the applicable zoning ordinance and asking it to adopt a zoning amendment that would clarify the height requirement for waterfront decks. The ordinance was introduced but not adopted after the neighbor’s attorney objected and insisted that the issue should first be referred to the local planning board. The governing body commissioned an expert to review and evaluate the ordinance. That expert investigated and submitted a report. Then, even though the neighbor continued to object, the planning board and municipal governing body both voted to approve the proposed amendments. The amendments permitted construction of new or reconstructed bulkheads up to a height of nine feet and allowed the use of fill to the maximum height of the bulkhead.

On remand, because the classification of the bayfront districts did not change, the lower court rejected the neighbor’s argument that before considering the amendments the municipality was required to give personal notice to all property owners living within 200 feet of its neighbor’s property. Also, the lower court rejected the neighbor’s argument that the municipality’s expert should have recused himself due because he lived next door to the builder. The lower court found that the expert had no personal, financial or social relationship with the builder, nor any interest different from that of any other municipal resident. Also, the expert had not been hired specifically for this project. He had served as the municipal engineer for the past sixteen years. The lower court further concluded that New Jersey law did not preempt the municipality from regulating bulkheads so long as its ordinances did not conflict with New Jersey law.

In a separate opinion, the lower court also concluded that the amendments applied to the builder’s deck under the time of decision rule. In light of the neighbor’s appeal, the builder’s delay in modifying the deck was understandable. Further, even if the builder had demolished the existing deck, it could simply have rebuilt it in conformity with the amended ordinances.

On appeal, the Appellate Division affirmed, finding that the objecting neighbor’s legal arguments were correctly decided by the lower court. The Court agreed that the objecting neighbor was misplaced in relying on a previously reported case requiring a municipality to provide personal notice to residents before adopting proposed classification changes in a zoning district. The statutory requirement to do so is triggered only where a proposed amendment would have a sweeping and dramatic effect on the district. Here, the Court agreed with the lower court that the ordinance’s amendments were rationally based and served a public purpose. It found that the record did not support the argument that the municipality aimed the legislation solely at legitimizing this particular builder’s deck. Next, the Court agreed that the municipality’s expert had no conflict; the fact that he lived in a neighborhood that would be regulated by the proposed ordinance amendments did not give him an interest not shared in common with the other members of the public.

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