Feller, J.s.c., Retired, Temporarily Assigned on Recall.
This matter was heard on the return day of an order to show cause why the relief requested by plaintiff Berkeley Heights Township, affirming the legality of the appointment of John A. Lucido as public advocate for the township should not be granted. The appointment and Lucido's participation at the hearing before the board of adjustment were objected to by Robert Greenberg attorney for Camelot Corp., one of the defendants, who has applied for a variance before said board.
Daniel Bernstein, board attorney, did not appear, having stated that he has no objections to the appointment of Lucido, but suggested that Lucido should be prohibited from participation at the hearing until such time as a court order was obtained affirming the legality of this appointment. On the return day leave was granted Stanley C. Van Ness, Public Advocate, Department of Public Advocate of the State of New Jersey, to file a brief and argue before the court as amicus curiae. Amicus curiae submitted a brief and argued in favor of the appointment of Lucido.
The complaint for declaratory judgment filed in behalf of plaintiff alleges that the Township of Berkeley Heights appointed John A. Lucido as a public advocate to appear before the board of adjustment and the planning board, if necessary,
to represent the public interest of the township at large, as more fully set out in the resolution of appointment and affidavits attached.
The complaint further alleges that when Lucido appealed before the board of adjustment on June 7, 1976 to fulfill the function for which he had been appointed, an objection was raised by counsel for the appellant in the case on appeal before the board. The chairman then refused to allow Lucido to participate in the appeal until he should receive a ruling from a court of competent jurisdiction that Lucido had such authority. The township committee then authorized the township attorney to institute the necessary legal proceedings to obtain the necessary court ruling that would allow Lucido to fulfill his functions, as intended by the township committee.
The complaint states that no action is presently pending in any court involving the matter herein set forth and that the appeal presently being heard before the board of adjustment is a major one involving defendant Camelot Corp.; that there have been several special hearings already devoted to the Camelot Corp., and in the event that Lucido, the local public advocate, cannot take part in the appeal of Camelot Corp., then the very function for which he was appointed and the record to be received by the township committee upon which it must take action as the granting authority for the relief requested will be entirely frustrated and the township will suffer immediate and irreparable injury.
The complaint petitions the court to affirm that the appointment of Lucido as public advocate is a proper legal appointment of the Township of Berkeley Heights, in the best interest of the township.
The problems involved were recognized ten years ago by Judge Joseph Halpern in an address delivered at the special session on planning and zoning of the New Jersey League of Municipalities in which he stated as follows:
The applicant's attorney if he is well prepared, presents his client's case in the most favorable light and it is inadvisable to rely on the verbal protests of objecting neighbors to give you the factual
basis upon which you can act intelligently. Most of the records we see give only the applicant's side of the case -- in such instances it is difficult, if not impossible, to sustain a Board's action in denying relief. [ New Jersey Municipalities "An ...