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Tuway Service Station, Inc. v. Zoning Board of Adjustment for the Township of Mahwah

A-3958-03T1 (N.J. Super. App. Div. 2005) (Unpublished)

ZONING; CONFLICT OF INTERESTS—Testimony by a planning firm for an applicant in front of a land use board while waiting for its appointment as the municipal planner to take effect gives rise to an impermissible appearance of impropriety.

A gasoline company applied to the municipal zoning board of adjustment for a use variance to construct a station on a major highway. A local property owner opposed the application. A series of public hearings were held on the application during which a planning firm testified on behalf of the gasoline company. During the course of the hearings, the municipality’s mayor offered the planning firm the position of township planner, which it accepted. However, the planning firm did not begin its duties as township planner until after the conclusion of hearings on the gasoline company’s application. The property owner that had opposed the use variance later learned of the appointment of the planning firm as township planner. The property owner then filed an action in lieu of prerogative writs, asserting that the appointment of the planning firm during the hearings on the use variance indicated that there was a conflict of interest. The lower court issued an order to show cause, requiring the zoning board to show cause as to why the hearings on the use variance should not be enjoined. Following oral argument on the order to show cause, the lower court found no evidence of a conflict of interest. It ruled, however, that there was an appearance of impropriety that tainted the variance proceedings, and ordered the application to begin anew. The property owner appealed, asserting that the lower court erred in not finding that there was a conflict of interest. The gasoline company cross-appealed, contending that the lower court erred in finding an appearance of impropriety.

The Appellate Division affirmed the lower court’s determination. It found that it was inappropriate for the couple to appeal the lower court’s decision simply because it disagreed with its legal conclusion. It ruled that an appeal may be brought only by a party aggrieved by a judgment. It held that the couple was not an aggrieved party because the lower court ruled in its favor. Accordingly, it dismissed the couple’s appeal. The Court then addressed the gasoline company’s cross-appeal. In evaluating the lower court’s finding of an appearance of impropriety, it discussed conflict of interest law. It found that conflict of interest law with respect to zoning board is governed by common law and statute. It noted that the New Jersey Supreme Court has held that members of a governing board should not act in any matter in which a member has a direct or indirect personal financial interest. It further found that New Jersey Ethics Law prohibits the participation of all muncipal officials, including township planners, in any matters where he, she or it has an interest, a direct or indirect financial or personal involvement that might reasonably be expected to impair his, her or its objectivity or independence of judgment. It found that the planning firm had an interest in the variance application because it testified on behalf of the applicant. As a result, it found that the lower court correctly concluded that there was an appearance of impropriety on behalf of the zoning board.

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