(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 21, 1998 -- Decided May 18, 1998
GARIBALDI, J., writing for a unanimous Court.
The issue in this appeal is whether the governing body of a municipality has standing to appear,
through its attorney, before the municipal zoning board of adjustment to oppose a nonconforming use
certification application and whether the appearance of the township attorney creates an impermissible
conflict of interest.
The Paruszewski family owns a farm in Elsinboro Township, a portion of which had been used as an
airfield on a limited basis. On June 27, 1991, after the township zoning officer directed the family to cease
use of the property as an airstrip until the necessary variances and approval were obtained, Joseph
Paruszewski filed a conditional use application with the Elsinboro Township Planning Board. The Planning
Board referred the matter to the Township Committee, as governing body of the municipality, to adopt a
zoning ordinance dealing specifically with basic utility airports. Relying on the opinion of a professional
planner, who advised that elimination of basic utility airports as a conditional use was in the public's best
interest, the Township Committee adopted an ordinance to that effect. Consequently, the Planning Board
denied Paruszewski's application for a conditional use permit.
Thereafter, in August 1994, Paruszewski filed an application with the Township Zoning Board for
certification that use of the farm as an airfield was a pre-existing nonconforming use. The Township
Committee decided to oppose that application and directed the Township Attorney to appear at the Zoning
Board hearing to present its position. The Township's position was based on the professional planner's
opinion that operating an airfield on the farm would be detrimental to the Township's master plan and
zoning scheme.
Following hearings on the application, the Zoning Board concluded that the farm had been used as
an airstrip only sporadically since its acquisition by the family and, therefore, did not rise to the level of an
accessory use and was not a pre-existing, nonconforming use.
Paruszewski then filed a complaint in lieu of prerogative writs against the Township Committee, the
Zoning Board, and the Township of Elsinboro. The Law Division subsequently granted the defendants'
motion for summary judgment, dismissing the complaint.
The Appellate Division affirmed, finding that the Township Committee had standing to appear
before the Zoning Board to oppose the application because the proposed nonconforming use substantially
impaired the zoning plan and, therefore, constituted an “arrogation of authority.” The panel further found
that the Township Committee had the right to make an appropriate record before the zoning board. Finally,
the Appellate Division held that the Township Attorney's appearance before the Zoning Board did not
present a reversible conflict of interest.
The Supreme Court granted Paruszewski's petition for certification.
HELD: Because the use of land as an airstrip has such a significant effect on the surrounding area, the Township Committee, as the governing body, had standing to oppose Paruszewski's nonconforming use certification application before the Zoning Board and the appearance of the Township Attorney did not
present a reversible conflict of interest.
1. The governing body of a municipality is vested with broad power by the state constitution and statutes,
including the authority to regulate land use. (pp. 6-8)
2. Generally, the municipal zoning officer has standing to institute actions to review violations of the
Municipal Land Use Law or local zoning ordinances, as well as an “interested party.” (pp. 8-9)
3. Although the governing body is the chief municipal legislative body and is empowered to enact zoning
ordinances, its power is tempered by the ability of the planning board of adjustment to permit deviation from
those ordinances in appropriate circumstances. (pp. 9-10)
4. The power to issue nonconforming use certifications is given solely to the zoning board and the governing
body has no power to review a zoning board's decision in respect thereof. (pp. 10-11)
5. The Municipal Land Use Law authorizes a township to appear before the zoning board in very limited
situations, while case law provides examples of other instances in which it is appropriate for the governing
body to appear before the zoning board, such as to form an adequate public record in matters of substantial
public importance and to guard against an arrogation of its authority. (pp. 11-13)
6. In appropriate cases, the appearance of a township attorney, on behalf of the municipality's interest,
provides a means by which the public interest is represented in proceedings of substantial public importance.
(p. 13-15)
7. Simply because the members of the Zoning Board were appointed by the Township does not diminish
their ability to act independently. (pp. 15-18)
8. Because the Township Committee had no power to review the Zoning Board's decision in respect of
certification of a nonconforming use and because the ultimate decision regarding the application rested at all
times with the Zoning Board, the Township Attorney's appearance in support of the Township's decision to
oppose the application did not create a conflict of interest. (pp. 18-19)
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and
COLEMAN join in JUSTICE GARIBALDI's opinion.
SUPREME COURT OF NEW JERSEY
A-
54 September Term 1997
JOSEPH B. PARUSZEWSKI,
Plaintiff-Appellant,
v.
TOWNSHIP OF ELSINBORO,
TOWNSHIP COMMITTEE OF TOWNSHIP
OF ELSINBORO and THE ZONING BOARD
OF ADJUSTMENT FOR THE TOWNSHIP
OF ELSINBORO,
Defendants-Respondents.
Argued January 21, 1998 -- Decided May 18, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
297 N.J. Super. 531 (1997).
Patrick F. McAndrew argued the cause for
appellant.
John G. Hoffman argued the cause for
respondents.
William John Kearns, Jr., argued the cause
for amici curiae New Jersey State League of
Municipalities and New Jersey Institute of
Municipal Attorneys (Kearns, Vassallo, Guest
& Kearns, attorneys).
The opinion of the Court was delivered by
GARIBALDI, J.
This appeal presents the question of whether the governing body of a municipality may appear through its attorney before the
municipal zoning board of adjustment to oppose a nonconforming
use certification application. Specifically, we consider whether
the governing body has standing to appear before the zoning board
through its attorney and whether the appearance of the township
attorney creates an impermissible conflict of interest.
In October 1991, the Planning Board reviewed petitioner's application, finding that although the Paruszewski farm was located in a zoning district that permitted basic utility airports as a conditional use, the applicable ordinance neither defined "basic utility airport" nor listed the requisite conditions that an applicant must satisfy in order to be granted a conditional use permit. The Planning Board referred the matter
to the Township Committee, requesting that it "resolve this
problem by adopting a zoning ordinance dealing specifically with
basic utility airports and the conditions, if any, for approval
of same." In response, the Township Committee retained a
professional planner and relied upon his opinion in deciding that
the elimination of basic utility airports as a conditional use
was in the public's best interest. The Township Committee
adopted Ordinance 42-1 to that effect. Consequently, the
Planning Board denied petitioner's application for a conditional
use permit.
In February 1992, Paruszewski petitioned the DOA to
reconsider his application for an aeronautical facility license.
The DOA, in turn, referred the matter to the Office of
Administrative Law for a full evidentiary hearing. On August 3,
1994, the presiding Administrative Law Judge placed the case on
the inactive list, allowing petitioner time to obtain a
nonconforming use certification or a use variance from the
Elsinboro Township Zoning Board of Adjustment ("Zoning Board" or
"Board"). On August 19, 1994, petitioner filed an application
with the Zoning Board for certification that use of the
Paruszewski farm as an airfield was a pre-existing nonconforming
use.
On September 6, 1994, in a closed session, the Township
Committee, as the governing body of the municipality, decided to
oppose petitioner's application to the Zoning Board. To
represent its interests, the Committee directed the Township
Attorney, John Hoffman ("Hoffman"), to appear at the Zoning Board
hearing. Hoffman's task was to present evidence establishing
that the use of the Paruszewski farm as an airfield was not a
previous nonconforming use, or alternatively, that it had been
abandoned. The Township Committee's position was based on the
professional planner's opinion that operating an airfield on the
farm would be detrimental to the Township's master plan and
zoning scheme.
The Board held hearings on petitioner's application on
September 21 and October 19, 1994. At the initial hearing, the
Zoning Board's attorney described petitioner's application;
ensured that no voting member had a conflict of interest;
introduced and explained the proposed role of Hoffman, the
Township Attorney; and outlined the applicable law regarding
nonconforming uses. Subsequently, Hoffman explained that he was
appearing on behalf of the governing body and on behalf of those
citizens who opposed petitioner's application. However, there
was no indication that he had actually been retained by any
private citizens. Hoffman then examined witnesses and submitted
oral and written arguments on behalf of the governing body in
opposition to petitioner's application. Petitioner did not
object to the participation of Hoffman at the hearing.
Following the testimony of petitioner, his father, and several of
their neighbors, the Zoning Board concluded that the farm had
been used as an airstrip only sporadically since the Paruszewski
family acquired the land in 1950. Therefore, the use "did not
rise to the level of [an] accessory use" and was "not a pre-existing, non-conforming use."
On December 27, 1994, petitioner filed a complaint in lieu
of prerogative writs against the Township Committee, the Zoning
Board, and the Township of Elsinboro. On April 16, 1996, the Law
Division granted defendants' motion for summary judgment,
dismissing petitioner's complaint with prejudice. The Appellate
Division affirmed.
297 N.J. Super. 531 (1997). Relying on
Township of Dover v. Board of Adjustment,
158 N.J. Super. 401
(App. Div. 1978), and Zoning Bd. of Adjustment v. Datchko,
142 N.J. Super. 501 (App. Div. 1976), the panel found that "a
substantial impairment of the zoning plan," which constituted an
"arrogation of authority" would result in a governing body having
standing and the right to sue. 297 N.J. Super. at 541. The
court reasoned that implicit in the Dover court's recognition of
the governing body's right to sue the zoning board in some
circumstances "is the governing body's additional right to make
an appropriate record before the zoning board." Id. at 542.
Therefore, the court held that the governing body acted "wholly
within its rights in appearing before the zoning board to lay
before that body its views with respect to the merits of
plaintiff's application." Id. at 543. In addition, the court
held that Hoffman's appearance did not present a reversible
conflict of interest. Id. at 539.
This Court granted certification,
149 N.J. 406 (1997),
limited to the issues arising out of the Township Attorney's
appearance before the Zoning Board in opposition to petitioner's
nonconforming use application. Like the trial court and
Appellate Division below, we conclude that the governing body had
standing to oppose petitioner's nonconforming use certification
application before the Zoning Board and that the appearance of
the Township Attorney did not present a reversible conflict of
interest. Thus, we affirm.
The provisions of this Constitution and of any law concerning municipal corporations formed for local government . . . shall be liberally construed in their favor. The powers of . . . such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.
Courts have consistently read this constitutional provision as a mandate to liberally construe powers granted to municipalities,
either by express terms or by implication, in their favor.
Township of Berkeley Heights v. Board of Adjustment,
144 N.J.
Super. 291, 296 (Law Div. 1976) (finding that that constitutional
provision compels the courts "'to interpret statutes liberally in
favor of the existence of local power to deal with local needs.'"
(quoting Whelan v. New Jersey Power & Light Co.,
45 N.J. 237, 251
(1975)); see also Fanelli v. City of Trenton,
135 N.J. 582, 591
(1994) (holding that Legislature's delegation of authority to
municipalities is to be interpreted broadly).
Under the general powers granted by Article III of the New
Jersey Constitution, the legislative branch of government has
been granted the authority to regulate land use. See William M.
Cox, New Jersey Zoning and Land Use Administration § 1-1 (1997)
[hereinafter New Jersey Zoning]. Article IV, Section 6,
paragraph 2 of the New Jersey Constitution authorizes the
Legislature to delegate some of that regulatory power to
municipalities. Pursuant to that authority, the Legislature
enacted the Municipal Land Use Law of 1975 ("MLUL" or "Law"),
N.J.S.A. 40:55D-1 to -136. The MLUL grants townships exclusive
powers to enforce the Law, N.J.S.A. 40:55D-18, and to adopt and
enforce zoning ordinances, N.J.S.A. 40:55D-62. See also
Washington Township Zoning Bd. v. Washington Township Planning
Bd.,
217 N.J. Super. 215, 221 (App. Div.) (governing body's power
to enforce provisions of MLUL is exclusive), certif. denied,
108 N.J. 218 (1987); Dover, supra, 158 N.J. Super. at 411
(recognizing that township, through its governing body, is
empowered "to establish . . . the essential land use character of
the municipality"). In addition, townships are authorized to
employ and compensate "such officials and employees . . . as may
be deemed necessary for the efficient conduct of the affairs of
the municipality." N.J.S.A. 40:48-1.
Under the MLUL, municipalities are charged with the general
goal of "guid[ing] the appropriate use or development of all
lands in this State, in a manner which will promote the public
health, safety, morals, and general welfare." N.J.S.A. 40:55D-2(a). To accomplish that goal, the MLUL delegates power to three
municipal agencies -- the governing body, the planning board, and
the zoning board of adjustment ("zoning board" or "board of
adjustment") -- that work to develop, enforce, and grant relief
from the municipality zoning scheme. New Jersey Zoning, supra, §
1-2.
N.J.S.A. 40:55D-18 determines which parties have standing to
institute actions to review violations of the MLUL or local
zoning ordinances, namely, "the proper local authorities of the
municipality or an interested party." Generally, the "proper
local authority" is the municipal zoning officer. Borough of Bay
Head v. MacFarlan,
209 N.J. Super. 134, 139 (App. Div. 1986). An
"interested party" is defined broadly to include "any person,
whether residing within or without the municipality, whose right
to use, acquire, or enjoy property is or may be affected by any
action taken under th[e] [MLUL]." N.J.S.A. 40:55D-4; see also
Home Builders League of S. Jersey, Inc. v. Township of Berlin,
81 N.J. 127, 131-135 (1979) (recognizing state's liberal approach to
standing in zoning cases and MLUL's broad definition of
“interested party”).
The MLUL prohibits the governing body from infringing on those powers expressly reserved to the planning and zoning boards. N.J.S.A. 40:55D-20 ("Any power expressly authorized by this act to be exercised by [the] (1) planning board or (2) board of adjustment shall not be exercised by any other body, except as otherwise provided in this act."). The planning and zoning boards are not only protected by statute; courts have also protected their powers to rule on zoning and planning matters from "adulterat[ion] or interfere[nce] . . . by acts of local governing bodies or officials." Diller & Fisher Co. v. Architectural Review Bd., 246 N.J. Super. 362, 367-68 (Law Div. 1990) (holding ordinance creating architectural review board impermissible attempt by governing body to "exercis[e] planning and zoning powers"); see also Cronin v. Township Comm., 239 N.J.
Super. 611, 618 (App. Div. 1990) (holding that governing body is
without power to certify nonconforming use).
We are specifically concerned with the powers of the board
of adjustment that are more limited than those of the governing
body. Because it is a "creature[] of statute[, it] . . . may
exercise only those powers granted by statute." New Jersey
Zoning, supra, § 4-2.1. N.J.S.A. 40:55D-70 ("Section 70")
outlines the powers of the zoning board. The zoning board has
the power to "[h]ear and decide appeals" of decisions by the
municipal zoning officer. N.J.S.A. 40:55D-70(a). It may also
"[h]ear and decide requests for interpretation of the zoning map
or ordinance or for decisions upon other special questions."
N.J.S.A. 40:55D-70(b). Furthermore, the MLUL vests the zoning
board with the power to grant variances. N.J.S.A. 40:55D-70(c),
-70(d). The power to issue nonconforming use certifications is
given solely to the zoning board. N.J.S.A. 40:55D-68 ("Section
68"); N.J.S.A. 40:55D-20.
The governing body has no power to review a zoning board's
decision with respect to certification of a pre-existing
nonconforming use pursuant to Section 68. Any review of the
board's decision is by way of action in lieu of prerogative
writs. R. 4:69-1. Because the zoning board is a quasi-judicial
board,
[o]n appeal, a reviewing court may not
consider de novo factual disputes decided by
the boards nor substitute its judgment for
that of the board. The questions on appeal
are only whether or not the action of the
board was arbitrary, capricious or patently
unreasonable, and whether it acted properly
under the statute, that is, in accordance
with the statutory standard.
[New Jersey Zoning, supra, § 4-4.3.]
By giving exclusive authority over nonconforming use
certifications to the zoning board, the Legislature evidenced its
intent that the governing body generally should not interfere
with or influence the zoning board's decision with respect to
nonconforming uses. Stated another way, the Legislature did not
intend the governing body to infringe on the prerogatives of the
zoning board. That board “is particularly well equipped to
address non-conforming use disputes” due to its ready access to
“[l]ocal insight and local knowledge,” and its duty to interpret
the zoning regulations pursuant to Section 70. Bell v. Township
of Bass River,
196 N.J. Super. 304, 314 (Law Div. 1984).
Nevertheless, the MLUL does authorize a township to appear
before the zoning board in at least two situtaions: (1) when the
application involves development of municipal property, and (2)
when the municipality owns property within 200 feet of the
property that is the subject of an application to the zoning
board, N.J.S.A. 40:55D-12. Case law provides examples of other
instances in which it is appropriate for the governing body to
appear before the zoning board. In Dover, supra, the Appellate
Division analyzed the relationship between the governing body and
the zoning board in the following terms:
[T]he board of adjustment is an independent
administrative agency whose powers stem
directly from the Legislature and hence are
not subject to abridgement, circumscription,
extension or other modification by the
governing body. . . . [A] necessary corollary
of that principle is that ordinarily the
manner in which the board exercises its
exclusive statutory power is not subject to
monitoring by the governing body and is
therefore immune not only to direct
interference by the governing body but also
to the indirect interference of an action in
lieu of prerogative writs brought by the
governing body seeking judicial review of the
board's determinations. . . . We are
therefore satisfied that so long as the board
acts within the ambit of its authority,
whether it has acted wisely or not, and
whether it has acted correctly or not, are
not matters which the governing body itself
should be able to raise.
An arrogation of authority is, however,
quite a different matter and, in our view, is
necessarily and obviously actionable by the
body whose authority has been directly
infringed upon.
[158 N.J. Super. at 408-09 (citations
omitted).]
In Datchko, supra, the court observed that the township
and the zoning board "have a substantial public interest in
preserving the integrity of the zoning ordinance. . . . Judicial
relief by [an action in lieu of prerogative writs] is available
to [the township and zoning board] to rectify what may reasonably
be considered a substantial impairment of the zoning plan." 142
N.J. Super. at 508-09. Furthermore, in cases that concern a
major development that would affect a substantial part of the
municipality, it is often necessary that an adequate record be
provided for the reviewing court. As the court in Berkeley
Heights observed:
There is no question that these hearings and
the proofs presented are critical stages in
the application process affecting the land
use scheme of the entire municipality. The
record is created at this time and may not be
amplified throughout the appellate process at
council or in court. This makes it
absolutely necessary that interested parties
become involved at the earliest stage of the
application process and possess the requisite
skill and financial support to adequately
protect their interests. This function may
well be served by the municipal public
advocate.
The use of property as an airstrip and the potential negative impact of such a use on the surrounding area poses a major concern to the entire community. Tanis v. Township of Hampton, 306 N.J. Super. 588, 607-08 (App. Div. 1997). In Garden
State Farms, Inc. v. Bay,
77 N.J. 439, 446-51 (1978), we held
that a local zoning ordinance barring heliports was not preempted
by federal and state law, and must be considered by the New
Jersey Department of Transportation before the Commissioner of
Transportation ("Commissioner") acts on heliport applications.
Indeed, we found that
a failure on the Commissioner's part to weigh
conscientiously local interests, to examine
carefully whether the proposed avigation
facility is compatible with the surrounding
land uses and to consult the local ordinances
and authorities in making its licensing
decision would constitute an abuse of
discretion.
See also Tanis, supra, 306 N.J. Super. at 599 (holding that
zoning board's authority to regulate and rule on landowner's
proposed use of farmland property for private landing strip was
not preempted by federal and state law, and that Commissioner
must consider whether issuance of license "'would be consistent
with public health, safety and welfare'") (quoting N.J.A.C.
16:54-2.5(a)). In matters of such importance to the township, it
is essential that a proper record be made for presentation to the
appropriate administrative agency.
In this case, the professional planner engaged by the
Township determined that the certification of petitioner's farm
as an airstrip would be contrary to the public interest and to
the detriment of the Township's master plan and zoning scheme.
Under those unique circumstances, the Township of Elsinboro had
the authority to oppose the application through its attorney's
appearance before the Zoning Board.
Derived from the common law, actions in lieu of prerogative writs vest courts with jurisdiction to review the actions of municipal agencies to ensure that such agencies are acting within their jurisdiction and "according to law." Wyzykowski v. Rizas, 132 N.J. 509, 522 (1993). "Among the guarantees of the common law is the entitlement to a fair and impartial tribunal." Ibid. Because of its origins, "common-law principles" generally govern actions in lieu of prerogative writs challenging municipal action on conflict of interest grounds. Id. at 523. "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.'" Ibid. (alteration in original) (quoting Scotch Plains-Fanwood Bd. of Educ. v. Syvertsen, 251 N.J. Super. 566, 568 (App. Div. 1991)). That common law principle has been codified by the MLUL. N.J.S.A. 40:55D-23(b) (providing that no member of planning board may "act on any matter in which he has, either directly or
indirectly, any personal or financial interest"); N.J.S.A.
40:55D-69 (same, zoning board of adjustment).
"'[W]hether a particular interest is sufficient to
disqualify is necessarily a factual one and depends upon the
circumstances of the particular case.'" Rizas, supra, 132 N.J.
at 523 (quoting Van Itallie v. Borough of Franklin Lakes,
28 N.J. 258, 268 (1958)). In conducting its inquiry, the Court must
strike a delicate balance:
[C]ourts should scrutinize the circumstances
with great care and should condemn anything
which indicates the likelihood of corruption
or favoritism. But in doing so they must
also be mindful that to abrogate a municipal
action at the suggestion that some remote and
nebulous interest is present, would be to
unjustifiably deprive a municipality in many
important instances of the services of its
duly elected or appointed officials.
[Id. at 523-24 (quoting Van Itallie, supra,
28 N.J. at 269).]
"The determinations of municipal officials should not be approached with a general feeling of suspicion, for as Justice Holmes has said, 'Universal distrust creates universal incompetency.'" Van Itallie, supra, 28 N.J. at 269 (quoting Graham v. United States, 231 U.S. 474, 480, 34 S. Ct. 148, 151, 58 L. Ed. 319, 324 (1913)). Although there need be only the "potential for conflict" to justify disqualification, "'[t]here cannot be a conflict of interest where there do not exist, realistically, contradictory desires tugging the official in opposite directions.'" Rizas, supra, 132 N.J. at 524 (alteration in original) (quoting LaRue v. Township of E. Brunswick, 68 N.J.
Super. 435, 448 (App. Div. 1961)). But see South Brunswick
Assocs. v. Township Council,
285 N.J. Super. 377, 382-84 (Law
Div. 1994) (holding township council's president could not appear
as advocate before zoning board and subsequently participate in
quasi-judicial review of same matter).
In Rizas, supra, this Court outlined the four circumstances
in which a conflict of interest will be found:
(1) "Direct pecuniary interests," when an
official votes on a matter benefitting the
official's own property or affording a direct
financial gain; (2) "Indirect pecuniary
interests," when an official votes on a
matter that financially benefits one closely
tied to the official, such as an employer, or
family member; (3) "Direct personal
interest," when an official votes on a matter
that benefits a blood relative or close
friend in a non-financial way, but a matter
of great importance . . . ; [and] (4)
"Indirect Personal Interest," when an
official votes on a matter in which an
individual's judgment may be affected because
of membership in some organization and a
desire to help that organization further its
policies.
[Id. at 525-26 (citing Michael A. Pane,
Conflict of Interest: Sometimes a Confusing
Maze, 2 New Jersey Municipalities 8-9 (March
1980)).]
The Court applied those categories to the issue in Rizas,
supra, of whether a mayor could appear as an applicant before his
municipality's zoning board. 132 N.J. at 526. The Appellate
Division had found a conflict, based on the mayor's active
status, which created the "appearance of impropriety." Ibid.;
see Wyzykowski v. Rizas,
254 N.J. Super. 28, 35-36 (App. Div.
1992). This Court, however, reversed.
Of relevance here, the Rizas Court began its conflict of
interest analysis by definitively stating that "[t]he status of
planning board members appointed by the mayor d[id] not fit
within any of those categories." Rizas, supra, 132 N.J. at 526.
Likewise, in this case, the mere fact that the zoning board
members were appointed by the Township did not disqualify them
from considering the Township Attorney's position with regard to
petitioner's application. Although petitioner argues that the
members of the Zoning Board had either an indirect pecuniary or
indirect personal interest based solely on their status as
members of the board, this Court specifically eschewed that type
of categorical disqualification in Rizas. Simply because the
members of the Zoning Board were appointed by the Township does
not diminish their ability to act independently. Thus, under the
Rizas conflict of interest analysis, there is no conflict
presented.
The Rizas Court also considered the lower court's perception
of "an appearance of impropriety" that existed while the mayor
was still in office. Ibid. Observing that the issue presented
was one of great public concern, the Court explained, "[t]he
issue is disturbing because of the intuitive concern that
citizens in the community may fear a betrayal of the public
trust." Id. at 527. Nevertheless, the Court concluded that the
mayor was not prohibited from exercising his ordinary right as a
citizen to file an application before the planning board. Id. at
527. This case presents no such potenial conflict. Here, the
Township Attorney was advocating a position not for his own
private interest, but for the public's interest. The Township
Committee had no power to review the Zoning Board's decision with
respect to certification of a nonconforming use. The ultimate
decision regarding petitioner's application rested at all times
with the Zoning Board. The Township Attorney merely appeared in
support of the Township's decision to oppose petitioner's
application. We therefore conclude that the appearance of
Hoffman did not create a conflict of interest.
That conclusion comports with the only reported New Jersey
case that addresses whether a governing body may appoint an
attorney to appear on its behalf before the zoning board in
opposition to a nonconforming use application. Berkeley Heights,
supra, 144 N.J. Super. at 295-98. In Berkeley Heights, supra,
the Law Division held that a governing body could appoint an
attorney to serve as a public advocate for the purpose of
appearing before the zoning and planning boards "to represent the
public interest of the township at large." 144 N.J. Super. at
294-95. After outlining the relevant constitutional, statutory,
and judicial framework, the court concluded that the creation of
a public advocate was "a lawful exercise of [the municipality's]
delegated powers." Id. at 297.
Finally, although not before us, we observe that the Zoning
Board's rejection of petitioner's application for certification
of a nonconforming use was based upon substantial evidence in the
record before the Board. Kramer v. Board of Adjustment,
45 N.J. 268, 296-97 (1965).
In addition to the specifically authorized appearances before the zoning board by a governing body concerning its property, we expect that the governing body of a municipality would appear at a hearing on a nonconforming use application only in those rare cases where the board has arrogated the governing body's authority, see Township of Stafford v. Stafford Township Zoning Bd. of Adjustment, ___ N.J. ___ (1998), and where there is a substantial public interest in protecting the integrity of the master plan or zoning scheme.
Because an airstrip has such a significant effect on the surrounding area, Hoffman's appearance did not violate the MLUL's grant of exclusive power to the Zoning Board to determine petitioner's nonconforming use certification application.
The judgment of the Appellate Division is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, POLLOCK, O'HERN, STEIN and COLEMAN join in JUSTICE GARIBALDI's opinion.
NO. A-54 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
JOSEPH B. PARUSZEWSKI,
Plaintiff-Appellant,
v.
TOWNSHIP OF ELSINBORO, et al.,
Defendants-Respondents.
DECIDED May 18, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Garibaldi
CONCURRING OPINION BY
DISSENTING OPINION BY