Agenda - Planning Commission - 02/02/2012

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December 25, 201 1 1 Volume 5 I No. 24 Zoning Bulletin that a variance is necessary to permit a reasonable use of the land. A party seeking either a use variance or a validity variance must comply with the same variance requirements, said the court. Conflict of Interest — Despite Recusing Himself, City Council's Attorney Gives Generic Advice on Resolution of Variance Request Variance applicant says attorney's participation tainted resolution and required it be vacated Citation: Kane Properties, L.L.C. u City of Hoboken, 2011 WL 5554361 (N.J. Super. Ct. App. Div. 2011) • NEW JERSEY ( 11/10/11) case addressed the issue of whether the participation of the city council's attorney in regard to the council's reso- lution on variance requests, despite the attorney's conflict of interest, re- quired vacation of the city's decision and a remand for reconsideration. The Background/Facts: Anthony Rey ("Rey") owned property located in an industrial zone in the city of Hoboken (the "City " ). Kane Properties, L.L.C. ( "Kane ") sought to construct a 12- story, 72 -unit residential build- ing with a parking garage and on- premises day care center on Rey's prop- erty. Kane applied to the City's Board of Adjustment (the "Board") for use and area variances. While considering the application, the Board heard testimony from members of the public, including Skyline Condominium Association ("Skyline"). Skyline operated a 15 -story residential building near Rey's property. Skyline, which was represented before the Board by its attorney, Michael Kates ( "Kates "), objected to Kane's variance requests. The Board granted the variances. Two weeks after the Board granted the variances, Kates was appointed Corporation Counsel for the city, thus becoming the City Council's legal advisor. Kates remained employed as a partner in the law firm that had represented Skyline. Skyline, represented by a new attorney Edward J. Buzak ("Buzak")— from another law firm, challenged to the City Council (the "Council") the Board's grant of the variances to Kane. Kates recused himself in regard to the appeal. Thereafter, Kates sent the Council a memorandum containing generic advice about how to handle zoning appeals in general. Buzak, Skyline's new attorney, also sent Kates' advice memo to the Council as part of his own advice on handling appeals. Later, the Council voted to deny Kane's requested variances at a meeting where Buzak was not present to advise them, but Kates was present. At that meeting, Kates provided the Coun- 4 © 2011 Thomson Reuters