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Schmidhausler v. Planning Board of the Borough of Lake Como

408 N.J. Super. 1, 972 A.2d 1155 (App. Div. 2009)

ZONING; PROCEDURES —Where a land use board vote is taken with a board member who missed a meeting, but did not have a bias or conflict that prevented him or her from ever voting on the matter, the appropriate remedy for a court is to remand the matter to the land use board and to require the members to deliberate and re-vote.

A property owner applied for planning board approval to subdivide his property into three single-family lots. Two of the new lots would abut a street, which the owner and the planning board believed to be a public street. At one of the hearings, it was discovered that it was not a public street, but rather a private road. The owner then purchased a portion of the private road and submitted an updated application. The owner’s subdivision application was approved by a 4-3 vote. One of the votes in favor of the application was cast by a planning board member who had missed the first hearings and failed to certify that he either read the transcript or listened to the tape prior to voting. Neighbors then challenged the validity of the planning board approval. They argued that, since the deciding vote in favor of the subdivision application was cast by a planning board member who had missed a hearing and did not read the transcript or listen to the tape of the meeting, that voter was ineligible to vote on the application. Therefore, the neighbors argued that his vote should be nullified. This would result in a 3-3 tie and a statutory denial of the owner’s application.

The lower court disagreed, finding that the owner’s application was incomplete during the meeting missed by one of the board members because of the misunderstanding regarding the private road. Therefore, the lower court found that because the planning board lacked jurisdiction to conduct a hearing that day so it did not count as a missed meeting.

The neighbors appealed, and the Appellate Division reversed. The Court found it was incorrect to assume that discovery of the private nature of the road made the application incomplete. A statute permits a municipality to require an applicant to correct any information found to be in error and to submit additional information, but such an application is not deemed incomplete just because a planning board requires corrections or additional submissions. In this case, the owner’s application was complete at the time of the missed meeting. However, the Court disagreed with the neighbors’ argument that because one board member was ineligible to vote, the application was deemed denied. The Court noted that the applicable statute, N.J.S.A. 40:55D-10.2, does not mandate that result. Contrary to the neighbors’ suggestion that the ineligible vote had to be discounted, the participation of an ineligible voter might or might not void the entire proceeding and require new hearing. New hearings are only required if there is evidence of a disqualifying conflict of interest. In this case, the board member who missed a meeting did not have a bias or conflict that prevented him from ever voting on the matter. The Court found that, rather than denying the application or requiring an entirely new hearing, the appropriate remedy in this case would have been to remand the matter to the planning board and require the members to deliberate and re-vote. In addition, any member who had not attended all of the hearings would be required to review the transcripts and tapes and certify that she or he had done so before deliberating and voting with the rest of the members. In the Court’s view, such a resolution would achieve the legislative goal of making sure that land use members are fully informed prior to voting on an application without incurring the additional expense of starting over, absent any evidence of a conflict of interest by a member.


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