On appeal from Superior Court of New Jersey, Law Division, Essex County.
Brody, Long and D'Annunzio. The opinion of the court was delivered by Brody, J.A.D.
This is an action in lieu of prerogative writs in which the Law Division sustained a use variance granted to defendant St. Luke's Episcopal Church (the Church) by defendant Board of Adjustment of the Township of Montclair (the Board). The variance permits the Church to use its rectory as a boarding house for seven to nine senior citizens, contrary to the uses permitted in the R-1 One-Family Residence Zone where it is located. The variance also permits the Church to provide only five off-street parking spaces instead of the eight required by ordinance for the proposed use.
Plaintiffs and numerous other residents who attended the Board hearings objected to the variance on the grounds that there is no pressing need for unsubsidized senior citizen housing in Montclair, and that the new use would presage the demise of one-family homes in the neighborhood and create unsafe traffic conditions. Some objectors expressed resentment because the Church had failed to advise and consult with its neighbors until it was required by law to give them notice in order to obtain the variance.
We reverse because plaintiffs' consent to the participation in these proceedings of two Board members who were also members of the Church did not constitute an effective waiver of the prohibited conflict between the interests of the Board and the interests of the Church in this matter.
N.J.S.A. 40:55D-69 provides in part:
No member of the board of adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
The same prohibition applies to members of a planning board. N.J.S.A. 40:55D-23b. We held in Zell v. Borough of Roseland, 42 N.J. Super. 75, 81-82 (App.Div.1956), that the prohibition required disqualification of a planning board member who was a member of a church that had applied for a zone change that would have permitted the church parsonage to be replaced with a bank.
Defendants argue that unlike the use change in Zell, the change here would produce senior citizen housing, a use that allegedly satisfies an important public need in Montclair. From that distinction, defendants conclude that the interests of the Church and the Board coincide and are therefore not in conflict. The argument overlooks the Board's further interest, not shared by the Church, that the proposed use "will not substantially impair the intent and the purpose of the zone plan and zoning ordinance." N.J.S.A. 40:55D-70. See Sokolinski v. Woodbridge Tp. Municipal Council, 192 N.J. Super. 101, 104 (App.Div.1983) (members of board of adjustment employed by local school board must disqualify themselves where school board is applicant for a variance even though both boards share some public interests).
The trial judge ruled that the conflict did not require disqualification because the two Board members had disclosed their membership in the Church at the beginning of the first of two nights of hearings and plaintiffs, when asked by the acting chairman,*fn1 had said that they did not object. The judge relied on the following dicta in Marlboro Manor, Inc. v. Montclair Tp., 187 N.J. Super. 359, 362 (App.Div.1982):
A personal interest or relationship that has reasonable prospect of influence upon the decisional process should, at the very least, be disclosed. Such disclosure secures to the applicant the right, prior to the exercise of the discretion vested in a council member, to timely challenge the composition of the hearing body.
The judge concluded from that language that when there has been disclosure of a conflict, an express waiver of a timely challenge barred a later challenge on appeal. The judge considered it unfair for plaintiffs to "sit back and see how it comes out and then . . . try to ...