SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-4286-95T1
CARE OF TENAFLY, INC., a Not for
Profit Corporation of the State of
New Jersey, JANICE JACOBS and GAYLE
CHERTOFF,
Plaintiffs-Respondents,
v.
THE TENAFLY ZONING BOARD OF
ADJUSTMENT,
Defendant,
and
THE MAYOR AND COUNCIL OF THE BOROUGH
OF TENAFLY and THE BOROUGH OF TENAFLY,
Defendants-Respondents,
and
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY,
Defendant-Appellant.
____________________________________
JAMES HIGGINS, JUDY ALDERSON, RICHARD
D. LEVIN, JAMES J. VIRGONA, THOMAS J.
PEROG, APRIL J. BRADLEY DELUSIO,
DAVID STEINBERG, SHAKARJIAN REALTY CO.,
INC., MILTON HART, CONSTANTINE H. CADENAS,
FRED A. SELSKY, CONSTANCE SELSKY, RUDOLPH
BERNSTEIN, PEARL BERNSTEIN, ALBERT STONE,
ELINORE STONE, HOWARD SACHAROFF, HOPE
SACHAROFF, DORIS FRANKLIN, COMMITTEE
FOR TENAFLY BUSINESSES, an unincorporated
association, and THE GRAND UNION COMPANY,
Plaintiffs-Respondents,
v.
BOROUGH OF TENAFLY and MAYOR AND
COUNCIL OF THE BOROUGH OF TENAFLY,
Defendants-Respondents,
and
THE BOARD OF ADJUSTMENT OF THE
BOROUGH OF TENAFLY,
Defendant,
and
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY,
Defendant-Appellant.
____________________________________
CARE OF TENAFLY, INC., a not for profit
corporation of the State of New Jersey,
JANICE JACOBS and GAYLE CHERTOFF,
Plaintiffs-Respondents,
v.
THE TENAFLY ZONING BOARD OF ADJUSTMENT,
Defendant,
and
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC.,
Defendant-Appellant.
____________________________________
JAMES HIGGINS, JUDY ALDERSON, RICHARD
D. LEVIN, JAMES J. VIRGONA, THOMAS J.
PEROG, APRIL J. BRADLEY DELUSIO, DAVID
STEINBERG, SHAKARJIAN REALTY CO., INC.,
MILTON HART, CONSTANTINE H. CADENAS, FRED
A. SELSKY, CONSTANCE SELSKY, RUDOLPH
BERNSTEIN, PEARL BERNSTEIN, ALBERT STONE,
ELINORE STONE, HOWARD SACHAROFF, HOPE
SACHAROFF, DORIS FRANKLIN, COMMITTEE
FOR TENAFLY BUSINESSES, an unincorporated
association, THE GRAND UNION COMPANY,
CAROLYN J. SEWELL, CHARLES F. SEWELL,
HERBERT LEVETOWN, BERNICE LEVETOWN,
ARTHUR BAUER, SUSAN BAUER, JOSEPH BIEGER,
ELAINE BIEGER, WYCKOFF QUALITY BAKERY
TENAFLY, INC., RUDY FROEDER, AT RISK
ENTERPRISES, INC., MANSOOR ARAIN, ROSALIND
STEINBERG, RONALD CITRO and KETAN KENIA,
Plaintiffs-Respondents,
v.
TENAFLY ZONING BOARD OF ADJUSTMENT,
Defendant,
and
THE GREAT ATLANTIC & PACIFIC TEA
COMPANY, INC.,
Defendant-Appellant.
____________________________________
Argued November 3, 1997 - Decided January 27,
1998
Before Judges Havey, Landau and Collester.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County.
Gail L. Price and Alfred L. Ferguson argued
the cause for appellant (Price, Meese,
Shulman & D'Arminio and McCarter & English,
attorneys; Ms. Price, Louis C. D'Arminio,
Mr. Ferguson and Gary T. Hall, of counsel and
on the brief).
Steven Morey Greenberg argued the cause for
respondents Care of Tenafly, Inc., Janice
Jacobs and Gayle Chertoff (Greenberg & Lanz,
attorneys; Mr. Greenberg and Susan S.
Rutherford, on the brief).
Walter A. Lesnevich argued the cause for
respondents Borough of Tenafly and Mayor and
Council of the Borough of Tenafly (Lesnevich
& Marzano-Lesnevich, attorneys; Mr. Lesnevich,
on the brief).
John J. Segreto argued the cause for respondents James Higgins, Judy Alderson, Richard D. Levin, James J. Virgona, Thomas J.
Perog, April J. Bradley DeLusio, David
Steinberg, Shakarjian Realty Co., Inc.,
Milton Hart, Constantine H. Cadenas, Fred A.
Selsky, Constance Selsky, Rudolph Bernstein,
Pearl Bernstein, Albert Stone, Elinore Stone,
Howard Sacharoff, Hope Sacharoff, Doris
Franklin, Committee for Tenafly Businesses,
The Grand Union Company, Carolyn J. Sewell,
Charles F. Sewell, Herbert Levetown, Bernice
Levetown, Arthur Bauer, Susan Bauer, Joseph
Bieger, Elaine Bieger, Wyckoff Quality Bakery
Tenafly, Inc., Rudy Froeder, At Risk
Enterprises, Inc., Mansoor Arain, Rosalind
Steinberg, Ronald Citro and Ketan Kenia
(Segreto & Segreto, attorneys; James V.
Segreto, of counsel and on the brief).
George Milanos argued the cause for defendant
Tenafly Zoning Board of Adjustment.
The opinion of the court was delivered by
HAVEY, P.J.A.D.
In this zoning case, defendant Great Atlantic and Pacific
Tea Company, Inc. (A&P), appeals from a judgment declaring
invalid a variance and site plan approval granted to it by
defendant Tenafly Zoning Board of Adjustment (Board). Judge
Hamer, in a comprehensive oral opinion, concluded that a member
of the Board, whose mother owned a commercial enterprise
approximately fifty feet from A&P's site, possessed a
disqualifying conflict of interest which invalidated the
approvals. We agree and affirm.
In November 1993, A&P applied to the Board for a special
reasons variance and site plan approval to construct a
supermarket with attached satellite stores on a 9.9 acre tract in
Tenafly. The lot is zoned M-1, which permits uses such as light
manufacturing, warehousing, office buildings and research
laboratories. Since a retail supermarket is not a permitted use,
a special reasons variance was required.
Prior to the first public hearing on November 22, 1993, the
Board conducted a public "work session," at which Board member
John Armaniaco disclosed that his mother owned commercial
property on Piermont Road, approximately 50 feet from the north-westerly point of A&P's site. The Board's attorney advised
Armaniaco that he was not in conflict of interest and could
participate in the hearing. The remaining Board members
concurred with the attorney's opinion. Neither A&P
representatives, nor representatives from any objectors, were
present during the workshop.
During the subsequent eighteen public hearings, Grand Union
Company and its employee, James Higgins, appeared in opposition
to A&P's application. Neither opponent, nor any other interested
party, raised the conflict of interest claim during the course of
the hearings. At the close of the testimony, the Board conducted
an executive session. During the session Armaniaco again raised
the potential conflict of interest question and was again advised
by the Board's attorney that no conflict existed. On October 10,
1994, the Board by written resolution, granted the special
reasons variance by a five-to-two vote. Armaniaco voted in favor
of the resolution.
Care of Tenafly, Inc. (Care), Grand Union and several
Tenafly residents filed appeals to the Tenafly Borough Council.
The Council affirmed the grant of the use variance by a three-to-three vote. See N.J.S.A. 40:55D-17e.
Subsequently, Care and others filed an action in lieu of
prerogative writs challenging the special reasons variance.
Grand Union and Higgins filed a separate action.
During the pendency of the in lieu actions, the Board
approved A&P's final site plan application on May 15, 1995.
Plaintiffs thereupon filed separate complaints challenging the
site plan approval. In all of the prerogative writs complaints,
plaintiffs raised the conflict of interest question respecting
Armaniaco. The actions were consolidated, and Judge Hamer
ordered that Armaniaco submit to a deposition on the conflict
issue.
Armaniaco testified that he is in the business of operating
heavy machinery. He owns several properties in Tenafly, as well
as interests in limited liability corporations (LLCs) which also
own property within the borough. His sister has a fifty percent
interest in two of the LLCs.
Armaniaco's eighty-three-year-old mother is ninety-five
percent owner of a third LLC, "125 Piermont Road, LLC." His
sister owns the remaining five percent. This LLC owns the
commercial property referred to by Armaniaco during the workshop
session which is fifty feet from A&P's site. Prior to A&P's
variance application, 125 Piermont Road was leased to Rent-A-Wreck, a car rental business. While A&P's applications were
pending before the Board, Rent-A-Wreck, a month-to-month tenant,
requested a written lease. Armaniaco acknowledged that in the
fall of 1994, he was consulted by his mother and sister as to
whether they should enter into a written lease with Rent-A-Wreck.
They also asked him his opinion regarding the proposed rental
figure. He concurred in the idea of a written lease and told
them "I thought that [the rental figure] was fair." According to
Armaniaco, his mother and sister asked him about the lease
"[b]ecause I am part of the family." Armaniaco also disclosed
that his mother had no plans to sell the commercial property
because she was using the rent as a source of income "to live
on."
During the bench trial Judge Hamer considered the deposition
testimony of Armaniaco, as well as the record made before the
Board. He determined that Board member Armaniaco had an
"absolute," "disqualifying" and "impermissible" conflict of
interest which rendered the approvals voidable. The judge
focused on the fact that Armaniaco's mother's commercial property
was just fifty feet from the A&P site, and the variance and site
plans, if granted by the Board "would have a financial impact on
the property . . . whether it be good, bad or whatever." The
judge also considered Armaniaco's investment experience, his
consultation with his mother and sister regarding the lease with
Rent-A-Wreck, and the prospect that he may be a beneficiary under
his mother's estate, in determining whether Armaniaco had a
direct or indirect personal interest in the outcome of the
applications before the Board. Finding that Armaniaco had acted
in good faith and was "up front" in disclosing the potential
conflict, the judge nevertheless concluded that the "potential"
for psychological influence required his disqualification.
A&P argues that the invalidation of its approvals "represents an unprecedented and wholly unwarranted misapplication of conflict of interest principles." In support of the contention, A&P cites to the following: (1) neither Armaniaco nor his mother had any interest in or relationship to A&P; (2) no evidence in the record exists demonstrating that an approval of A&P's applications would have an impact, positive or negative, on the mother's property; (3) Armaniaco's mother did not participate in the hearing before the Board; and (4) the judge's improper "speculative" observation that Armaniaco might inherit the property from his mother. A&P reasons that in view of these factors, Armaniaco's mother's interest in the nearby commercial property was too nebulous and remote a factor as to justify nullification of the approvals.
"At common law `[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 his duties as a member of the public body.'" Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993) (quoting Scotch Plains-Fanwood Bd. of Educ. v. Syvertsen, 251 N.J. Super. 566, 568 (App. Div. 1991)). The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-1 to -136, codified the common law principle. A zoning board member is prohibited from acting "on any matter in
which he has, either directly or indirectly, any personal or
financial interest." N.J.S.A. 40:55D-69.
The question of whether a specific "interest" is sufficient
to disqualify is fact-sensitive, depending upon the special
circumstances of each case. Wyzykowski, supra, 132 N.J. at 523;
Sugarman v. Township of Teaneck, 272 N.J. Super. 162, 169 (App.
Div.), certif. denied,
137 N.J. 310 (1994). In resolving the
issue, the court must recognize the competing forces in play: the
need to root out "corruption or favoritism" against the potential
that disqualification based on "some remote and nebulous
interest" may "discourage capable men and women from holding
public office." Van Itallie v. Borough of Franklin Lakes,
28 N.J. 258, 269 (1958).
Although a conflict of interest issue is resolved on a case-by-case basis, abundant decisions respecting specific fact
patterns provide us guidance. "`The question will always be
whether the circumstances could reasonably be interpreted to show
that they had the likely capacity to tempt the official to depart
from his sworn public duty.'" Wyzykowski, supra, 132 N.J. at 523
(quoting Van Itallie, supra, 28 N.J. at 268). The Court in
Wyzykowski distills the controlling principles as follows:
Actual proof of dishonesty need not be shown.
Aldom, supra, 42 N.J. Super. at 503,
127 A.2d 190. An actual conflict of interest is not
the decisive factor, nor is "whether the
public servant succumbs to the temptation,"
but rather whether there is a potential for
conflict. Griggs v. Borough of Princeton,
33 N.J. 207, 219,
162 A.2d 862 (1960) (citing
Aldom, supra, 42 N.J. Super. at 502,
127 A.2d 190). A conflicting interest arises when the
public official has an interest not shared in
common with the other members of the public.
Id. 33 N.J. at 220-21,
162 A.2d 862. Another
way of analyzing the issue is to understand
that "[t]here cannot be a conflict of
interest where there do not exist,
realistically, contradictory desires tugging
the official in opposite directions." LaRue
v. Township of East Brunswick, 68 N.J. Super.
435, 448,
172 A.2d 691 (App. Div. 1961).
[Wyzykowski, supra, 132 N.J. at 524.]
See cases cited in Wyzykowski, supra, 132 N.J. at 524-25,
applying these principles under varied circumstances. See also
categories of situations requiring disqualification in Michael A.
Pane, Conflict of Interest: Sometimes a Confusing Maze, Part II,
New Jersey Municipalities at 8, 9 (1980).
Pertinent here is the inclusion within the conflict analysis
of a provision under the Local Government Ethics Law, N.J.S.A.
40A:9-22.5d, which reads:
No local government officer or employee
shall act in his official capacity in any
matter where he, a member of his immediate
family, or a business organization in which
he has an interest, has a direct or indirect
financial or personal involvement that might
reasonably be expected to impair his
objectivity or independence of judgment[.]
[Emphasis added.]
See Wyzykowski, supra, 132 N.J. at 530 ("[f]uture decisions [respecting conflicts of interest] should be consistent with the principles of [the Ethics Law]"). One commentator has observed that this provision, enacted in 1991 (L.1991, c. 29), by use of the words "personal involvement," is intended to broaden categories of disqualifying interests beyond the direct or
indirect "personal or financial interest" standard utilized by
the MLUL under N.J.S.A. 40:55D-69. William M. Cox, New Jersey
Zoning and Land Use Administration § 3-1.2(e) at 38, 39 (Gann ed.
1997). Cox notes that:
In the past, for example, personal friendship
has never been deemed to be a disqualifying
factor. Under the wording of the Ethics Law,
however, it would appear that such intangible
relationships as friendship or being an
alumnus of the same school as the applicant,
for example, could be held to be grounds for
disqualification.
[Id. at 39.]
We need not attempt to define the outer limits of the term
"personal involvement" here. Whether our inquiry is into the
nature and duration of board member Armaniaco's "personal
involvement" (N.J.S.A. 40A:9-22.5d), or his "direct[] or
indirect[] . . . personal . . . interest," in A&P's application
(N.J.S.A. 40:55D-69), the fundamental question remains constant:
did the proximity of his mother's commercial property and his
relationship with his mother have the capacity to impair his
objectivity or independence of judgment and to "tempt [him] to
depart from his sworn public duty"? Van Itallie, supra, 28 N.J.
at 268.
Two Appellate Division cases have applied the common law
principles to fact patterns analogous to the circumstances
present here. In Petrick v. Planning Board of Jersey City, 287
N.J. Super. 325 (App. Div. 1996), a planning board's site plan
approval was challenged on the basis that a board member was in
conflict by virtue of the fact that his wife was an employee of
the applicant, Christ Hospital. Id. at 328. The board granted
Christ Hospital's site plan approval for a parking garage. Ibid.
We found no conflict of interest because the wife's employment
with the hospital as an occupational therapist was "occasional."
Id. at 331. We also observed that no evidence even suggested
that the board member's wife's employment status "would be
enhanced by the passage of the parking garage resolution" and
further noted that the board member had in fact vigorously
opposed the application and voted against approving the
resolution. Id. at 332. We concluded that the relationship of
the board member's wife with the hospital "is too remote and too
attenuated to disqualify [the planning board member] from voting"
on the hospital's application for site plan approval. Ibid.
In contrast, we held in Barrett v. Union Tp. Comm., 230 N.J.
Super. 195 (App. Div. 1989), that a member of the governing body
was in a position of potential conflict when he voted for an
amendment to the township's zoning ordinance permitting the
construction of a continuing health care community owned by a
nursing home in which the Committee member's mother was a
patient. Id. at 199, 204. We held that:
It would strain credulity to conclude that
[the governing body member] did not have an
interest in seeing that his invalid mother
was properly cared for in the facility that
was owned and operated by [the applicant].
The fact that this was not a direct personal
or financial interest is not dispositive of
the issue. The question is whether there
existed an interest creating a potential
conflict and not whether [the governing body
member] yielded to the temptation of it.
[Id. at 204.]
We concluded that the "situation presented a potential for
psychological influence that cannot be ignored." Id. at 204-05.
Accord Aldom v. Borough of Roseland, 42 N.J. Super. 495, 507
(App. Div. 1956).
In our view, the circumstances before us are more akin to
the facts in Barrett, supra, 230 N.J. Super. 195, than those in
Petrick, supra, 287 N.J. Super. 325. Board member Armaniaco's
eighty-three-year-old mother owned a commercial enterprise within
fifty feet of the A&P site. She therefore had sufficient
interest in A&P's proposal before the planning board so as to
receive written notice of its application. See N.J.S.A. 40:55D-12b; McNamara v. Borough of Saddle River, 64 N.J. Super. 426, 430
(App. Div. 1960) (the Legislature, by requiring that owners of
any property within 200 feet of the property subject to the
application be given written notice, declared that all such
persons have an "interest" in the application).
Moreover, as a general proposition, a public official
"should not participate in a municipal matter . . . where he
might be reasonably expected to favor or promote a relative's
interest of a substantial character." Van Itallie, supra, 28
N.J. at 268. Armaniaco's interest in an application involving a
supermarket/shopping center directly across from his mother's
commercial property cannot seriously be questioned. He
acknowledged that his mother depended on the income derived from
her commercial enterprise "to live on." The value of his
mother's property, and consequently the income generated
therefrom, would no doubt be affected by the Board's decision to
grant A&P's special reasons and site plan applications. Clearly,
this circumstance was not one that Armaniaco held "in common with
members of the public." Aldom, supra, 42 N.J. Super. at 507.
This "potential for psychological influences cannot be ignored."
Township of Lafayette v. Board of Chosen Freeholders, 208 N.J.
Super. 468, 473 (App. Div. 1986).
Armaniaco's expressed interest in the financial integrity of
his mother's commercial property was hardly "remote and
nebulous." Van Itallie, supra, 28 N.J. at 269. He gave his
mother advice about the fairness of the proposed rental amount
and the wisdom of entering into a written lease with Rent-A-Wreck. This fact underscored Armaniaco's personal interest in
looking after the financial health of his mother. Further, since
the advice was given during the pendency of A&P's application,
his personal interest could reasonably be interpreted as having
the capacity to tempt him "to depart from his sworn public duty."
Id. at 268. In short, his continued participation in the
application process was incompatible with "the spirit of
impartiality with which the Board's quasi-judicial proceedings
must be governed." Szoke v. Zoning Board of Adjustment, 260 N.J.
Super. 341, 345 (App. Div. 1992).
A&P argues that because the conflict claim is "tenuous at best," the equities in its favor weigh against the harsh remedy
of nullifying the approvals. In particular, A&P notes that:
(1) it was not made aware of the alleged conflict of interest or
the Board counsel's opinion until after the eighteen days of
hearings on its variance application were completed and the
approval was granted;See footnote 1 (2) Grand Union and the other objectors
did not assert the conflict issue before the Board; (3) the issue
was raised for the first time by Care in its appeal to the
governing body; and (4) A&P's good faith expenditure in excess of
$1.2 million in approval costs was nullified by the trial court
based on circumstances beyond the knowledge or control of A&P.
A&P reasons that since the conflict of interest issue was a close
one, these factors dictate affirmance of the approvals.
We know of no authority for the proposition that a conflict
of interest may be ignored because of equitable factors favoring
an applicant. Sugarman, supra, 272 N.J. Super. 162, cited by
A&P, does not so hold. In Sugarman, a zoning board member was a
prior affiliate member of the congregation which was applying to
the board for variances to expand its synagogue. Id. at 166.
During the hearing, plaintiffs-objectors, through their attorney,
asked the board member about her prior affiliation with the
congregation, but made no objection or motion for the board
member's recusal. Id. at 167. The purported conflict issue was
raised for the first time in the Law Division. Id. at 168. We
observed that:
where a Board member has such a tenuous
appearance of impropriety as in this case, a
party cannot make a strategic decision to not
challenge the alleged impropriety at the
hearing in order to save it as a trump card
on appeal, in the event of an adverse
decision. Hence, we decline to overturn the
Board's decision on that basis.
[Id. at 171.]
First, it cannot be said here that plaintiffs made a
"strategic decision" to save the conflict issue "as a trump card
on appeal." As we understand the record, they were not present
at the workshop session when Armaniaco disclosed his potential
conflict. Thus, plaintiffs were in no better position than A&P
to know of his disqualifying interest.
Second, the above-cited observation made by the Sugarman
court is dictum. The holding in Sugarman was that, although the
board member's prior affiliation with the congregation "suggests
the advisability" of removing herself from the application
process "due to a possible appearance of impropriety," there was
no reason to vacate the board's grant of the variances because
"[t]here was no indication of any actual pecuniary or personal
interest, improper motive or actual bias" on the board member's
part. Ibid. Thus, there was no conflict of interest. Ibid.
We also reject A&P's argument that the doctrine of equitable
estoppel must apply to nullify the disqualifying interest as a
basis to invalidate the approval. Its estoppel argument is based
on the fact that it had no knowledge of the conflict during the
Board hearings and, in good faith, expended $1.2 million in
processing its application.See footnote 2 In support of that assertion A&P
relies on Jessie A. Howland & Sons, Inc. v. Borough of Freehold,
143 N.J. Super. 484 (App. Div.), certif. denied,
72 N.J. 466
(1976) and Hill v. Board of Adjustment of Eatontown, 122 N.J.
Super. 156 (App. Div. 1972). Citing Jantausch v. Borough of
Verona, 41 N.J. Super. 89, 94-95 (Law Div. 1956), aff'd,
24 N.J. 326 (1957), both Howland and Hill distinguish between a building
permit issued without any semblance of compliance with or
authorization in the ordinance (the "void" class), Hill, supra,
122 N.J. Super. at 166, and the permit issued as a result of an
erroneous and debatable interpretation of the ordinance, relied
on by the property owner in good faith (the "voidable" class).
Ibid.; see also Jantausch, supra, 41 N.J. Super. at 122.
Neither Howland nor Hill are directly on point since they
dealt with reliance on a building permit issued by a municipal
official, not the conflict of interest of a zoning board member.
Nevertheless, the "void" or "voidable" distinction cannot be
ignored. Some courts hold that a disqualifying interest held by
a board member renders the approval "void." See Dover Tp.
Homeowners & Tenants Ass'n v. Township of Dover, 114 N.J. Super.
270, 279 (App. Div. 1971) (the doctrines of laches, estoppel and
relative hardship are inapplicable when the actions of a planning
board are "void" in part because of a board member's conflict of
interest). Other courts conclude that such approvals are
"voidable." See Pyatt v. Mayor of Dunellen,
9 N.J. 548, 557
(1952); Sugarman, supra, 272 N.J. Super. at 169. In other
contexts, the distinction is deemed significant, in that the
equitable doctrines of ratification and estoppel may apply to
"voidable" acts of a public body. See Summer Cottagers' Ass'n of
Cape May v. City of Cape May,
19 N.J. 493, 504 (1955).
However, A&P has cited no case holding that the doctrine of
equitable estoppel may apply where an approval is "voidable"
because of a conflict of interest. We need not decide here
whether there may be some set of facts justifying application of
the doctrine in such circumstances. Suffice it to say that, on
the facts here, where violation of the conflict of interest
statute is clear, and where the objectors filed a timely
challenge to the approvals, see R. 4:69-6(a)(3), the doctrine
should not apply.
We reach this conclusion because of our uncompromising
concern "for the impartial exercise of quasi-judicial authority."
McVoy, supra, 213 N.J. Super. at 116. Indeed, we have held that
a disqualification cannot even be waived by the appellant or an
objector "where the conflict is immediate and real." Id. at 113.
See also William M. Cox, supra, New Jersey Zoning and Land Use
Administration § 3-3 at 47 ("[w]hat is certain is that if the
interest is one which is specifically proscribed by statute, then
the disqualification is absolute and there can be no waiver by
anyone of the disqualification"). "If a personal interest
requiring disqualification exists, neither the failure to object
nor the existence of sufficient votes absent that member's vote
would change the requirement that the entire proceeding would be
voidable." Sugarman, supra, 272 N.J. Super. at 169. "`The
infection of the concurrence of the interested person spreads, so
that the action of the whole body is voidable.'" Pyatt, supra, 9
N.J. at 557 (quoting State, West Jersey Traction Co. v. Board of
Pub. Works,
56 N.J.L. 431, 440 (Sup. Ct. 1894), aff'd,
57 N.J.L. 710 (E. & A. 1895)). This is so because "[w]hen a member of a
local agency exercises that broad discretion under the cloud of a
conflicting personal interest, there is a greater public good to
be served than holding an applicant or objector to his waiver."
McVoy, supra, 213 N.J. Super. at 114.
The same is true when we consider A&P's purported
faultlessness. Protecting the public interest in the integrity
of the quasi-judicial process is the key. Applying estoppel when
the objectors have made a timely challenge to the approvals
diminishes that protection. The purpose of the conflict of
interest statute is "prophylaxis against misconduct and its
effect can be exerted fully only if it is applied
undiscriminatingly where applicable." Zell v. Borough of
Roseland, 42 N.J. Super. 75, 82 (App. Div. 1956).
Affirmed.
Footnote: 1There is no indication in the record before us that A&P's
representatives and attorney were aware of Armaniaco's potential
conflict of interest during the hearings on A&P's variance
application. However, during the hearing on its site plan
application, the objectors' attorney squarely raised the conflict
issue. The Board's attorney advised the Board that he had
already ruled that Armaniaco had no disqualifying interest.
A&P's attorney, who was present, did not address the issue.
Footnote: 2The substantial investment of time and expense by A&P could
have been avoided had the Board given notice to A&P and the
public at large of Armaniaco's disclosure at the first formal
public hearing on the application. At that point, A&P or any
objector could have explored Armaniaco's disclosure in order to
judge "`whether a particular interest is sufficient to
disqualify' or is too `remote and speculative.'" McVoy v. Board
of Adjustment of Montclair Tp., 213 N.J. Super. 109, 113 (App.
Div. 1986) (quoting Van Itallie, supra, 28 N.J. at 268-69). A&P
or the objector then could have moved for recusal of Armaniaco.
See 35 New Jersey Practice, Local Government Law § 351 at 54-55
(Michael A. Pane) (2d ed. 1993) (prompt and "full public
disclosure" of a potential conflict of interest "allows an
attorney for an applicant or objector to agree or disagree as to
whether the member is in conflict").