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Randolph v. City of Brigantine Planning Board

405 N.J. Super. 215, 963 A.2d 1224 (App. Div. 2009)

ZONING; CONFLICTS OF INTEREST — Even if a land use board member has only the appearance of an indirect personal involvement with a member of the board’s professional staff, that board member must be disqualified from hearing matters in which the member of the professional staff is involved.

A property owner sought preliminary site plan approval from a municipality for the construction of a hotel. An engineer acted as the “planning board’s engineer” and was part of the planning board’s professional staff that provided advice to the board in connection with the developer’s application. He was also separately employed by an engineering firm. One of the principals of this engineering firm lived with, and had a relationship with, the chairwoman of the planning board. He also was the municipality’s zoning officer. Reports submitted by the board’s engineer were given “a significant amount of weight” by the board. The chairwoman chaired the first round of hearings where the board voted that a use variance was not necessary to build the hotel. The chairwoman voted with the majority, and the board rejected its engineer’s recommendation that a use variance was needed. The developer then presented testimony from its professionals. The board, however, did not reach a decision on the merits of the application at the initial hearing. At the next hearing, an objection was made that the chairwoman should not be allowed to participate in the proceedings because of her relationship with the principal of the engineering firm. The chairwoman recused herself for the remainder of the proceedings. The board then voted to approve the preliminary site plan approval.

The person who objected to the chairwoman’s participation at the second board meeting challenged the board’s approval. The lower court upheld the board’s determination.

The ruling was appealed. The Appellate Division noted that a conflict of interest question generally involves a board member and an applicant. Here, the issue related to a conflict between a board member and a board professional. The Court cited the common law rule that a public official is disqualified from participating in judicial or quasi-judicial proceedings in which the official has a conflicting interest and noted that this rule was codified by the Municipal Land Use Law. It also pointed out that the Ethics Law uses the words “financial or personal involvement” instead of the words “any personal or financial interest.” The Court noted the distinction and ruled that the more expansive definition of “conflict of interest” enacted under the New Jersey Ethics Law would be applicable to both the board engineer and any member of the board. The Court stated that even if a planning board member only had the appearance of an indirect personal involvement, that member must be disqualified. The Court believed that there was reasonable basis to conclude that there was the appearance of impropriety in the instant case. The principal of the engineering firm and the board’s chairwomen had lived together for ten years. The board’s engineer, who was generally supervised by the principal, issued reports that heavily influenced the board. The Court ruled that although the chairwoman did not participate in the second hearing, she chaired and was actively involved in the first hearing. Because of the chairwoman’s active participation in the first hearing - where the board voted that variances were not needed and testimony was presented by the applicant’s witnesses - the Court concluded that the board’s proceedings had to be set aside in their entirety. As a result, the Court remanded the case to the board for further proceedings consistent with its opinion.


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