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Finn v. Mayor and Council of Borough of Norwood

Decided: August 3, 1988.

JOHN J. FINN AND MARGARET M. FINN, PLAINTIFFS-APPELLANTS,
v.
MAYOR AND COUNCIL OF THE BOROUGH OF NORWOOD, JOHN GUERCIO, INDIVIDUALLY AND AS TAX ASSESSOR OF THE BOROUGH OF NORWOOD, AND THE BOARD OF ADJUSTMENT OF THE BOROUGH OF NORWOOD, DEFENDANTS-RESPONDENTS



On appeal from Superior Court of New Jersey, Law Division, Bergen County

King, Gruccio and D'Annunzio. The opinion of the court was delivered by D'Annunzio, J.A.D.

D'annunzio

Plaintiffs, residents of the Borough of Norwood (Borough), challenged an exchange of lands between the Borough and defendant, John Guercio, the Borough's tax assessor, and also challenged a frontage variance granted to one of the lots involved in the exchange. Plaintiffs now appeal an adverse judgment of the Law Division.

In 1985, the Borough owned a lot on High Street with dimensions of 60 feet by 200 feet and a lot on Seymour Street with dimensions of 100 feet by 105 feet. We shall refer to these lots as the Borough lots. The Borough also owned parcels of land in an area of Norwood known as Fox Hill. The record does not adequately define the extent of the Borough's Fox Hill holdings.

In 1985, Guercio was the Borough's tax assessor and had held that position since 1977. Guercio, motivated by a desire to provide his son with a building lot in the Borough, located certain privately owned lots in Fox Hill which he concluded might be available to purchase. Guercio's purpose in acquiring these Fox Hill lots was to use them in a swap with the municipality to acquire the High Street and Seymour Street lots. Accordingly, Guercio contacted Ms. Stiven and Mr. Harvey, the owners of the Fox Hill lots which had caught his attention.

Guercio negotiated deals with Stiven and Harvey pursuant to which Guercio could acquire the Fox Hill lots contingent on an exchange of these lots for the Borough lots. The Stiven lot was 25 feet by 100 feet and was to be acquired for $1,000. Six of the Harvey lots were 25 feet by 100 feet. The seventh Harvey lot was 44 feet by 100 feet. All seven Harvey lots were to be acquired for $3,000.

Guercio's contracts with Harvey and Stiven were dated in August 1985.

Guercio testified that in the summer of 1985 he approached the Borough governing body in a "work session." Apparently there are no minutes of "work sessions." According to Guercio, he proposed to the governing body that he would acquire the Stiven and Harvey lots and exchange them for the Borough lots on High Street and Seymour Street. It is not clear from the record whether Guercio's proposal to the governing body was made before or after he had placed the Stiven and Harvey lots under contract.

The governing body expressed an interest in the exchange and retained, at Guercio's expense, Sheehan Associates to perform an appraisal. Guercio also retained William Stack to appraise the properties.

In December 1985, the Borough adopted an ordinance authorizing the exchange. The ordinance recited that the Borough's appraiser, Sheehan Associates determined that the Guercio lots had a value of $63,400 and that the Borough lots were worth $80,700, for a difference of $17,300. The ordinance also recited that Guercio's appraiser, Stack and Stack, established that Guercio's lots had a value of $31,700 and that the Borough's lot had a value of $50,425, for a difference of $18,725. The ordinance stated that the parties had agreed on a compromise, that the lots would be exchanged and that in addition Guercio would pay $18,000 to the Borough.

On December 5, 1985, the Borough's Board of Adjustment granted a variance to the High Street lot which allowed the construction of a residence on that lot despite the fact that its 60 feet of frontage was 15 feet less than the frontage required in the zoning ordinance.

Thereafter, plaintiffs commenced this action in the Law Division. At the trial, William Stack testified as to his appraisal of the properties. Plaintiffs' appraiser, Mason, testified that the High Street ...


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