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Barrett v. Union Township Committee

Decided: February 3, 1989.

HELEN BARRETT, LEON ANDORS, DIANE DROBINSKI, CHARLES EM, JOHN FRAIN, BARBARA HAMBERGER, HELEN HAPPEL, PATTI L. HOFF, MARTIN A. KILLMORGAN, HERMAN LAZARUS, III, STEPHEN LAZORCHAK, MILDRED C. LINK, IRENE LOBELL, ROBERT LOBELL, JANE MANZIONE, JOSEPHINE MITCHELL, FRANK PACIFICO, SHIRLEY PACIFICO, DANIEL STICCO, DORIS STICCO, ELLEN WILSON AND WILLIAM WILSON, PLAINTIFFS-RESPONDENTS,
v.
UNION TOWNSHIP COMMITTEE AND UNION TOWNSHIP PLANNING BOARD, DEFENDANTS-APPELLANTS, AND DAVID HOFSTETTER AND JOANNE L. HOFSTETTER, HIS WIFE, INTERVENORS-APPELLANTS



On appeal from the Superior COurt of New Jersey, Law Division, Hunterdon County.

Michels, Long and Keefe. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

[230 NJSuper Page 196] The pivotal issue posed by these consolidated appeals is whether Councilman John Strube, a member of the defendant Union Township Committee (Township Committee) was in a position of conflict of interest when he voted for an amendment

to the Union Township Zoning Ordinance that permitted the construction of a continuing care community on property adjacent to the Stone Arch Health Care Center (Stone Arch), a nursing home owned by intervenor David Hofstetter, and in which Strube's mother was a patient. Judge Griffin in the Law Division held that Strube was in a position of conflict, disqualified him, and declared certain amendments to the Township Land Use Code to be invalid. The Township Committee, defendant Union Township Planning Board (Planning Board) and intervenors Hofstetter appeal.

A brief recitation of the facts giving rise to this appeal are helpful to understand the decision we reach. In 1984, the Planning Board adopted a municipal master plan which, in part, recommended that a certain area of the municipality be preserved for agricultural use. On January 5, 1985, David Hofstetter, the owner and operator of Stone Arch, filed an application with the Planning Board for a site plan approval for a continuing care community to be built on a lot adjacent to the nursing home. The lot that David Hofstetter wanted to build upon is owned by him and his wife, Joanne L. Hofstetter, and is located in the area that the Planning Board recommended be preserved for agricultural use. At the time of this application, however, the Hofstetters' lot was in an R-2 zone. This zoning classification did not specifically permit continuing care communities, but it did permit "clinics, rest homes, convalescent homes and nursing homes." A 1982 Board of Adjustment opinion indicated that continuing care communities came within the broad definition of permitted uses in this zone.

The Hofstetters' application for site plan approval was dismissed by the Planning Board on August 29, 1985, because the lot had less than the required frontage. The Planning Board concluded that the Hofstetters would have to obtain a use variance from the Board of Adjustment before approval could be granted. The Hofstetters applied for such a variance and hearings were held on the matter until January 1986, when the hearings were adjourned.

In 1985, the Township Committee adopted a land use code which conformed with the recommendations of the 1984 master plan issued by the Planning Board. Among other things, the new land use code established an agricultural preservation (AP) district, within which the permitted land uses were single-family detached, single-family detached cluster and performance subdivisions. The new classification allowed for nursing homes as a conditional use, but did not allow for clinics, rest homes, convalescent homes or continuing care facilities, all of which were permitted under the earlier R-2 zone classification.

On January 16, 1986, however, the Planning Board issued a memorandum to the Township Committee which recommended that the AP district "nursing home" conditional use be amended to include "similar or congregate continuing care facilities in conjunction with nursing homes." On April 2, 1986, the Township Committee introduced an ordinance that (1) added the term "continuing care facility" to the new code; (2) rezoned the Hofstetters' lot and 13 other lots into a Country Residential (CR) district from their earlier inclusion in the AP district; (3) made continuing care facility a use by right in a CR district; (4) deleted nursing home as a use from all districts except the CR district; (5) redefined "housing for the elderly" to differentiate it clearly from continuing care facilities and nursing homes, and (6) established criteria for continuing care facilities.

The amending ordinance was tabled by the Township Committee pending reference to the Planning Board. On May 29, 1986, a public hearing was held before the Planning Board. The seven regular members and two alternate members of the board were all in attendance. During the hearing, it was proposed that the Township's master plan be amended to conform to the provisions of the proposed amended land use ordinance. A vote on the proposal resulted in a 3-3 split with the seventh member of the board, the mayor, abstaining. The first alternate also abstained, but the second alternate voted in the affirmative. A resolution to this effect was adopted on June 11, 1986.

Thereafter, on June 28, 1986, the Township Committee held a public hearing on the proposed amended land use ordinance. At this time the proposed ordinance was considered as two separate ordinances; one dealing with the creation of the CR district and the other dealing essentially with continuing care facilities. The ordinances were passed on a 2-1 vote, with Councilmen Frank Keary and Strube voting in the affirmative.

On August 11, 1986, plaintiffs, who are real estate owners, taxpayers and residents of the Township, instituted this action by a complaint in lieu of a prerogative writ against the Township Committee and the Planning Board. The complaint claimed generally that (1) the Planning Board's vote to amend the township's master plan was invalid due to certain procedural deficiencies in the voting process, and (2) the Township Committee's adoption of two ordinance amendments was arbitrary and capricious; was designed to improperly authorize ...


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