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Bracey v. City of Long Branch

Decided: March 8, 1962.


Knight, A.j.s.c.


[73 NJSuper Page 93] This suit in lieu of prerogative writs challenges the validity of an ordinance of the City of Long Branch entitled, "An Ordinance to Supplement and Amend an Ordinance Entitled 'The Zoning Ordinance of the City of Long Branch' adopted May 31, 1955." The

amendatory ordinance was adopted June 6, 1961 and became effective June 14, 1961. The boundaries of the zones created are delineated on a map prepared by Otis R. Seaman, City Engineer, entitled, "Zoning Plan, Shrewsbury Riverfront Area" dated April 3, 1961. The area involved may be described as follows:

"Beginning at the intersection of the Shrewsbury River and Branchport Creek; thence eastwardly along the Shrewsbury River to the extension of Manhasset Avenue; thence eastwardly along Manhasset Avenue extended and Manhasset Avenue to Patten Avenue; thence westwardly along Patten Avenue to Florence Avenue; thence southwardly along Florence Avenue to Joline Avenue; thence westwardly along Joline Avenue to the westerly bank of Troutman's Creek; thence northwardly along the westerly bank of Troutman's Creek to Atlantic Avenue; thence westwardly along Atlantic Avenue to Branchport Creek and along Branchport Creek to the point and place of beginning."

On May 15, 1955 the governing body of the city adopted a resolution requesting the planning board to make a preliminary investigation and to hold a public hearing for the purpose of determining whether this area was "blighted." The board conducted preliminary investigations and held extensive public hearings, and thereafter, by resolution dated September 8, 1955, declared the area to be blighted. After receiving a copy of the report and resolution and reviewing the matter, the governing body approved the planning board's determination of blight on October 4, 1955. See Wilson v. Long Branch , 27 N.J. 360 (1958), where this determination was sustained.

N.J.S.A. 55:14A-1 et seq. empowers a local housing authority to prepare plans for the redevelopment of a blighted area and to undertake such redevelopment, provided the governing body approves the plan. The Long Branch Housing Authority prepared a plan for the redevelopment of the area, entitled "Urban Renewal Plan, Project N.J. R-20." On August 19, 1958 (after the Wilson decision rendered June 16, 1958) the board of commissioners approved the plan prepared by the housing authority, and on

March 17, 1959 directed the execution of a "Cooperation Agreement" between the city and the housing authority whereby the city agreed, among other things, "to amend the zoning map now in effect in the city to the extent that it will conform to the zoning plan included in the 'Urban Renewal Plan.'" The ordinance under attack includes substantially all of the zoning recommendations made by the housing authority.

Plaintiffs are residents of the city and attack the ordinance on the following grounds: (1) certain members of the board of commissioners and the planning board had personal and conflicting interests in the adoption of the ordinance; and (2) adoption of the ordinance pursuant to the "Cooperation Agreement" between the city and the housing authority constituted an unlawful exercise of the zoning power.

Paul Kiernan, who was mayor of the city, and James W. Mancuso are alleged to have had such personal and conflicting interest in the adoption of the ordinance as would invalidate it. Kiernan, a member of the board of commissioners, as mayor, was an ex officio member of the planning board during the period those bodies considered the subject ordinance. Mancuso was appointed a member of the planning board on September 16, 1958, and holds that office presently. Pursuant to N.J.S.A. 40:55-35 the planning board considered the ordinance and recommended its adoption. As members of the planning board both Kiernan and Mancuso voted in favor of the recommendation. Subsequently, as a member of the board of commissioners, Kiernan voted for the adoption of the ordinance.

Plaintiffs contend Kiernan's disqualifying interest stems from the fact that his son was an employee of the housing authority at the time the ordinance was approved by the planning board and at the time it was adopted by the governing body. Mancuso performed architectural services for projects of the housing authority before and after his vote on the ordinance, and he was being considered by the

authority for such employment at the time of his vote. In addition, he worked on the urban renewal plan for the Shrewsbury Riverfront area as an "architectural consultant." This relationship between Mancuso and the housing authority is said to constitute a disqualifying interest.

The alleged disqualifying interests of Kiernan and Mancuso need only be evaluated with reference to their participation in the deliberations of the planning board, since the subsequent action of the board of commissioners will not cure a defect of this nature, if any, in the action of the planning board. Hochberg v. Borough of Freehold , 40 N.J. Super. 276, 283 (App. Div. 1956); Zell v. Borough of Roseland , 42 N.J. Super. 75, 82 (App. Div. 1956). While the self-interest of public officials in many areas of municipal action is evaluated in the light of common-law principles, planning board members are also subject to statutory control. N.J.S.A. 40:55-1.4 provides in part:

"No member of the planning board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest."

But the pertinent common-law principles are no less severe in their requirements, and the authorities in the area will accordingly be considered applicable here without distinction. See Aldom v. Borough of Roseland , 42 N.J. Super. 495, 503 (App. Div. 1956).

The public is entitled to have its representatives perform their duties free from any personal or pecuniary interest which might affect their judgment. "The law tolerates no mingling of self interest; it demands exclusive loyalty." Aldom v. Borough of Roseland, supra , at p. 500. The action of a public body may be vitiated by the action of one member of that body if he had a disqualifying personal or financial interest in the matter before it. Pyatt v. Mayor, etc., of Dunellen , 9 N.J. 548 (1952); Traction Co. v. Board of Works , 56 N.J.L. 431 (Sup. Ct. 1894), affirmed 57 N.J.L. 710 (E. & A. 1894). Whether the

interest alleged is sufficient to vitiate the action challenged depends upon the circumstances of the particular case.

"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." Van Itallie v. Franklin Lakes , 28 N.J. 258, 268 (1958).

Consideration of some of the many factual situations ruled upon by our courts serves as a guide in evaluating the extent and effect of the alleged conflicting interests in the instant matter. In most cases the interest condemned involved a direct or indirect pecuniary or other benefit to the official himself or to a relative or employer. See Griggs v. Princeton Borough , 33 N.J. 207 (1960) (where a university was principal stockholder of a corporation which would benefit by a designation of a certain area as "blighted," said determination by the borough council was voided because two of the participating councilmen were professors of the university); Pyatt v. Mayor and Council of Dunellen, supra (zoning ordinances stricken where councilmen voting for their enactment were employees of a corporation substantially benefited thereby); Rankin v. Board of Education of Egg Harbor Tp. , 135 N.J.L. 299 (E. & A. 1947) (set aside award of contract to sister-in-law of chairman of transportation committee of board of education); McNamara v. Saddle River Borough , 64 N.J. Super. 426 (App. Div. 1960) (restrictive zoning amendment voided where participating councilman had previously attempted to similarly restrict the affected entity through litigation); S. & L. Associates, Inc. v. Washington Tp. , 61 N.J. Super. 312 (App. Div. 1960) (zoning amendment enhancing value of property owned by certain participating members of the governing body invalidated); Aldom v. Borough of Roseland, supra (zoning amendment voided where employer of councilman who voted for the amendment would be benefited by its enactment); Zell v. Borough of Roseland, supra (voided zoning amendment where member of planning board

who voted to approve the change was a communicant of a church which would be benefited thereby); Hochberg v. Borough of Freehold, supra (voided zoning amendment which would permit enlargement of a horse track at which a participating councilman operated a horsemen's kitchen); Ames v. Montclair , 97 N.J. Eq. 60 (Ch. 1925) (sale of board of education land to son of board member held unenforceable). But see Wilson v. Long Branch, supra; Van Itallie v. Franklin Lakes, supra; Calloway v. Wildwood Crest , 70 N.J. Super. 601 (Law Div. 1961). In Wilson the resolution of the governing body designating the Shrewsbury Riverfront area as "blighted" was held valid although two members of the planning board were officers in a financial institution which held mortgages on property within the area, and a third member was health officer of the city and resided about 300 feet from the area. In Van Itallie v. Franklin Lakes a councilman's brother held a "lower echelon" position in a corporation which would be benefited by a zoning amendment for which the councilman voted. This familial relationship was held not to constitute such an interest as would justify invalidation of the amendment. And in Calloway the action of a councilman in voting to approve the sale of public land was upheld, although the councilman's brother-in-law was a commission broker and represented the purchaser at the sale.

The alleged conflicting interest of Kiernan is similar to that said to exist in Van Itallie v. Franklin Lakes, supra. Kiernan's son had been a civil service employee of the housing authority for some time before the enactment of the ordinance and, furthermore, there is no proof that he could possibly benefit therefrom. Under the circumstances, ...

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