Agenda - Planning Commission - 02/02/2012

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Zoning Bulletin December 25, 2011 1 Volume 5 1 No. 24 cil some procedural advice concerning their vote on the resolution denying the variances. Kates signed the resolution. Kane filed an action in lieu of prerogative writs challenging the Coun- cil's decision. Among other things, Kane contended that the decision was tainted by Kates' participation. The Law Division disagreed with Kane and affirmed the Council's decision. DECISION: Reversed, and matter remanded. The Superior Court of New Jersey, Appellate Division, held that the participation of Kates despite his conflict of interest required that the city's decision on Kane's variance requests be vacated and remanded for reconsideration. The court said that "[t]he essential question" it had to answer was "whether, in the mind of a reasonable citizen fairly acquainted with the facts, this scenario would create an appearance of improper influence." In other words,. the question was "whether, in this situation, a municipal decision -maker that receives advice, directly or indirectly, from an attorney with a conflict of interest, and that allows the attorney to participate in a Council meeting at which he should not even have been present, taints its resulting decision." The court answered that question in the affirmative. Here, Skyline was the objector, and Skyline's former attorney was the Council's attorney. The court found "[t]hat scenario would give any reasonable citizen cause for concern." The court noted that an attorney having such a conflict must "withdraw completely from representing both the municipality ... and the private cli- ent with respect to such matter." Here, "Kates should have been absolutely and completely screened from this application," said the court. "No advice with his name on it should have gone to the Council .... Kates should not have been in the room when the Council was voting on the resolution, and he certainly should not have given any advice about it, procedural or other- wise.... Finally, Kates should not have signed the resolution." Taking all of Kates' participation together, the court concluded that the Council's resolution on Kane's' variance requests must be vacated and the matter remanded to the Council for reconsideration ab initio (i.e., from the beginning) . See also: In re A. and B., 44 N.J. 331, 209 A.2d 101, 17 A.L.R.3d 827 (1965). See also: Randolph v. City of Brigantine Planning Bd., 405 N.J. Super. 215, 963 A.2d 1224 (App. Div. 2009). © 2011 Thomson Reuters 5