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Taft v. Upper Freehold Township Planning Board

A-6347-98T5 (N.J. Super. App. Div. 2000) (Unpublished)

ZONING; CONFLICTS OF INTEREST—When a land use board member with a conflict doesn’t vote but still participates in deliberations, a court must void the board’s actions.

A developer obtained Preliminary Major Site Approval (PMSA) in 1984 for a 49 unit subdivision. It then obtained Amended Preliminary Major Site Approval (APMSA) in 1996 and Final Major Site Plan Approval (FMSA) in 1997. A neighboring property owner alleged that the approvals were void because one board member in 1989 and three board members in 1996 and 1997 had conflicts of interest regarding the subject property. It also alleged the developer failed to give the statutorily required notice for the 1989 application and that the board failed to publish the statutory required notice of the 1989 approval. The board and developer maintained that the neighbor’s claims were time-barred. Although a claim, such as the neighbor’s, must generally be made within forty-five (45) days from the publication of the notice of approval, a court may enlarge the period of time where “it is manifest that the interest of justice so requires.” Here, the lower court held that the 1996 and 1997 approvals were void because of conflicts of interest on the part of the three board members and that it was in the public’s interest in such conflict-of-interest cases to enlarge the time bar. It, however, upheld the 1989 PMSA. The Appellate Division upheld the lower court with respect to the 1996 APMSA and the 1997 FMSA, but reversed as to the original 1984 APSMA. In those cases, one board member was a tenant farmer on the tenant property when the board adopted all three resolutions and in 1996 and 1997 another board member was a part owner of an adjacent golf course and the third board member was employed at the golf course. Apparently, “[t]he PMSA as originally proposed would drain substantial water onto the pond located on the golf course.” The APMSA, as approved, changed the drainage pattern to not adversely affect the golf course or the pond. Consequently, the adjustment in the PMSA directly benefitted the golf course, thereby benefitting the board member who was a part owner. Consequently, one board owner had a pecuniary interest in maintaining this golf course and the other board member had an interest, through the golf course owner, as an employee of the golf course. The board member who was a tenant farmer had an interest because a subdivision would end his tenancy. For other reasons, the Appellate Division had no trouble agreeing with the lower court that the approvals of the APMSA and the PMSA were null and void and that it was appropriate to enlarge the time in which the neighbor could make that argument. With respect to the 1989 PMSA approval, the Appellate Division remanded the matter to the lower court. Apparently, the record was unclear as to whether the applicant failed to give its neighbor notice or whether the neighbor merely failed to receive the notice. Another question to be answered was, assuming that the board had jurisdiction in 1989, when did the neighbor have actual notice of the APMSA? In addition, the lower court was asked to more thoroughly analyze whether there was sufficient public interest in the neighbor’s conflict-of-interest challenge to warrant a discretionary enlargement of time to challenge the 1989 PMSA and whether the doctrine of laches barred any otherwise appropriate enlargement of time. Lastly, in 1989, the tenant farmer may have participated in the deliberations, but the record clearly indicated that he had abstained from voting. The Appellate Division pointed out that when a board member with an “apparent conflict of interest” participates, but does not vote, a court is still required to void the board’s action because “[t]o distinguish between substantive participation in the deliberative process and the technical vote would elevate form over substance. The evil of apparent partiality - the perception of less than a fair shake - inheres in the clearly expressed participation in the deliberative process by one whose own conscious required abstinence.”

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