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Paruszewski v. Township of Elsinboro

154 N.J. 45, 711 A.2d 273 (1998)

ZONING; STANDING—A municipality has standing to appear before its municipal zoning board of adjustment to oppose a non-conforming use certification application. In appropriate cases, an appearance by the municipality’s attorney does not create a conflict of interest.

A farm owner used a portion of its farm as an airfield on a limited basis. Unable to qualify the airport as a conditional use, the owner asked the municipality’s zoning board for certification that this use of the farm was a pre-existing, non-conforming use. The board concluded that the farm had been used as an air strip only sporadically and therefore the use did not rise to the level of an accessory use and was not a pre-existing, non-conforming use. The governing board of the municipality appeared through its attorney before the zoning board of adjustment to oppose the non-conforming use certification application.

Disappointed with the result, the farm owner filed an action against the zoning board and the municipality, asserting that the municipality did not have standing to appear before the zoning board in the first place and that appearance by the municipality’s attorney created an impermissible conflict of interest.

In general, by giving exclusive authority over non-conforming use certifications to zoning boards, the legislature evidenced its intent that the governing body should not interfere with or influence zoning board decisions with respect to non-conforming uses. A zoning board of adjustment is an independent administrative agency whose powers stem directly from the state legislature and hence are not subject to abridgement, circumscription, extension or other modification by the municipality’s governing body. Therefore, so long as a board acts within the ambit of its authority, whether it has acted wisely or not and whether it has acted correctly or not, the governing body has no standing to appear before it. On the other hand, if the zoning board is guilty of arrogation of the governing body’s authority, the municipality necessarily and obviously has the authority to act. Here, where the municipality had a substantial public interest in preserving the integrity of its zoning ordinance, the municipality was found to have authority to rectify what might have been substantial impairment of that ordinance. The use of property as an airport and the potential negative impact of such use on surrounding area was found to pose a major concern to the entire community and was found to be contrary to the public interest and to the detriment of the municipality’s master plan and zoning scheme. Under such circumstances, the municipality was found to have the authority to oppose the application through its attorney’s appearance before the zoning board.

The Court said that the municipality’s attorney did not have a conflict of interest because the appearance of a municipality’s attorney on behalf of the municipality’s interest provides a means by which the public interest is represented in proceedings of substantial public importance. Even though, at common law, a public official is disqualified from participating in judicial or quasi-judicial proceedings in which the official has a conflicting interest, no conflict was found just because the members of the zoning board had been appointed by the municipality. Here, where the municipality had a significant interest in a matter of public concern, the Court found no impermissible conflict of interest in appointing an attorney to appear before zoning board members who had also been appointed by the municipality.


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