Skip to main content

Murtagh v. Borough of Park Ridge

A-2048-04T2 (N.J. Super. App. Div. 2006) (Unpublished)

ZONING; CONFLICTS OF INTEREST—A land use board member who owns property within 200 feet of a proposed project has the right, after recusal, to appear before the board as a concerned citizen to raise objections and may even be permitted to do so without use of an intermediary attorney.

A property owner applied for a subdivision of his property and for variances from the bulk requirements of the municipal zoning ordinance. When his applications were denied by the planning board, he filed an action in Lieu of Prerogative Writs challenging the board’s decision. The complaint asserted that the denial of the subdivision was arbitrary and that the ordinance fixing the bulk requirements was invalid. The lower court rejected the property owner’s complaint, and the property owner appealed from that order.

The property owner’s first argument involved an individual who was both a board member and the owner of property abutting the property owner’s property. Pursuant to statutory law, that board member did not participate in the board’s consideration of the applications because he owned property too close to the property subject to the application. Nevertheless, the recused board member spoke during a public portion of the meeting, objecting to the application. The property owner argued that this participation was impermissible and required a reversal of the board’s decision.

In considering the property owner’s argument, the Appellate Division explained that individual notice of an application is required to be given to those persons owning property within a certain distance of the land for which an application was made. The Court reasoned that the special type of notice suggested a special status for those landowners in close proximity to this subject property. That, in turn, suggested a strong policy of encouraging those most affected by the development to be heard. However, this policy is tempered by the prohibition of a local government officer or employee against using his or her official position to secure unwanted privileges or advantages for himself or others.

Accordingly, the property owner argued that the board member could not appear before the board on which he sat even though the proceedings in which he sought to appear involved his personal interests. The Appellate Division was not persuaded by that argument. Distinguishing the case upon which the property owner relied, the Court explained that the concern against special treatment was less pronounced when a member is requesting the board to conform to, rather than depart from, the established zoning requirements. Thus, the Court found no reason to require the board member to forfeit his right to be heard.

Lastly, the property owner argued that the board member was required to be represented by an intermediary in presenting his objections to the application. While the Appellate Division acknowledged some credence to the argument, the Court reasoned that the compelled use of an intermediary made little sense when a recused board member objected to a requested deviation from the zoning plan because the objection would be based on the objector’s peculiar situation and must be explained by the objector.

Accordingly, the Appellate Division affirmed the judgment of the lower court.

66 Park Street • Montclair, New Jersey 07042
tel: 973-783-3000 • fax: 973-744-5757 •