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Savino v. Zoning Board of Adjustment of the Township of Lyndhurst

A-3586-03T5 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; CONFLICTS OF INTEREST — A member a of municipal zoning board of adjustment may not vote on a zoning board application when the applicant is a relative of the board member.

A bank owned two adjoining properties which were on two separate lots. One of the lots was located within the municipality’s business zone. The other lot was located within the municipality’s residential zone. The bank operated its branch solely on the lot that was within the business zone. It sought to demolish its existing building and build a branch on both of the lots. In order to do so, the bank required a use variance for the lot that was within the residential zone. The bank applied to the municipal zoning board of adjustment for a use variance, and a four-day hearing was held. At the hearing, the bank presented testimony from a licensed architect who described the proposed construction, a licensed engineer regarding the draining and lighting, and a professional engineer who presented a traffic analysis. The bank’s assistant vice-president, who was related to a zoning board member, testified regarding the bank’s operations. A woman who owned property adjacent to the bank’s property objected to the bank’s application. At the hearing, she presented testimony from a professional engineer and planner, both of whom gave contrary opinions to those given by the bank’s experts. The woman also testified that the bank’s proposed plan would negatively impact the neighborhood. The zoning board ruled in favor of the bank and granted the use variance. The use variance was subsequently memorialized in a resolution that was later adopted. The woman then filed a complaint in lieu of prerogative writs against the zoning board. She asserted that the board’s action was: 1) arbitrary, capricious, and unreasonable; 2) inconsistent with the master plan and zoning scheme of the municipality; and 3) tainted by a conflict of interest. In support of her conflict of interest claim, she argued that the familial relationship between the assistant vice-president of the bank and a zoning board member rendered the board’s action void. The lower court ruled in favor of the bank, holding that there was no conflict of interest. The woman appealed.

The Appellate Division reversed the lower court’s ruling, rejecting its determination that there was no conflict of interest. In reaching its decision, the court discussed the provisions of N.J.S.A. 40:55D-69, which provides that “no member of a board of adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.” The Court held that this provision codified the common law principle that a public official is disqualified from participating in judicial or quasi-judicial proceedings in which the official has a conflicting interest that may interfere with the impartial performance of the official. It held that this conflict of interest principle applies to members of municipal zoning boards. It concluded that the fact that the bank representative was related to the board member gave rise to a conflict of interest, and that the board member should have abstained from participating in the hearing and voting on the application. As a result, the Court remanded the use variance application to the zoning board for a rehearing.

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