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Rivera v. Planning Board of the Borough of Roselle

A-5624-99-T3 (N.J. Super. App. Div. 2002) (Unpublished)

ZONING; CONFLICTS— When a land use board member testifies as a citizen at a board meeting, it is not necessary to disqualify the entire board from hearing and ruling upon the application.

A property owner submitted an application to a planning board in which it sought subdivision and variance approval. A public hearing was conducted before the planning board. At the hearing, the secretary of the planning board, a resident of the same neighborhood as the proposed subdivision, raised objections to the proposal. She raised her objections as a private citizen, however, she was also present at the meeting in her official capacity. After she completed her presentation, the hearing was closed to the public and the planning board voted unanimously to deny the application. It found that the proposed subdivision would cause a substantial detriment to the public good and would impair the intent and purpose of the municipality’s zoning plan. The property owner challenged the planning board’s decision. The lower court found that the secretary had the right, as an individual, to speak at the hearing but also found that the presentation by the secretary was a potential conflict of interest. Accordingly, the planning board should have stopped the presentation and held a hearing to determine if any of the members of the planning board should disqualify themselves. Since the planning board failed to stop the meeting to allow members to disqualify themselves, the impartiality of the hearing was in question. The lower court ruled that the entire planning board was disqualified, and that the members of the zoning board must appear in their place at a new hearing. It also ruled that, at the new hearing, the secretary must step down and disclose her position on the record before presenting her argument against the proposed subdivision. The Appellate Division affirmed the lower court’s determination that a new hearing needed to be conducted, however, it did not require the entire planning board be disqualified. The Court held that each planning board member should be given the opportunity to disqualify himself or herself, and if additional members are needed for a quorum, members of the zoning board would take their place as temporary replacements.

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