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Wyzykowski v. Rizas

Decided: February 3, 1992.


On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.

King, Dreier and Brochin. The opinion of the court was delivered by King, P.J.A.D.


The opinion of the court was delivered by


This appeal involves an application to the Neptune Planning Board concerning development of a vacant property in the Historic District-Commercial (HDC) of Ocean Grove, now a part of Neptune Township. The applicant developer, defendant Robert E. Rizas, was the Mayor of the Township during calendar years 1988 and 1989. The application for site plan approval and a bulk variance for a combination office and apartment building was approved by the Planning Board by a 3-2 vote (out of nine regular members) over strong public opposition in August 1989. In the prerogative writ challenge, Judge Selikoff, on August 3, 1990, reversed the decision in part and remanded to the Planning Board to conduct a new application process. He concluded that the Board's decision was tainted by the Mayor's participation in the application process in these particular circumstances. On this appeal by the objectors and cross-appeal by the developer-Mayor, we essentially affirm the result reached in the Law Division with some modification of the opinion and order.

This 94' X 65' Lawrence Avenue lot is the only undeveloped property in this particular zone and one of the very few

undeveloped properties in Ocean Grove. The Mayor was a member of the Planning Board at the time of the application. When the application was filed on March 9, 1989 the Mayor was described in it as the "contract purchaser." We were informed at oral argument that he had bought the undeveloped property from the water company during his 1988-1989 term of office as Mayor. He later closed on the property, finally and without condition, during the pendency of the application process. The Mayor testified at the hearing that he was engaged in the business of commercial development, ownership of properties, and rental management. The application to the Planning Board was granted by formal resolution on August 23, 1989 and was immediately challenged in the Law Division. The applicant-Mayor's term of office meanwhile expired on December 31, 1989.

On March 7, 1989 the Mayor filed the original application for site plan approval of this proposed three-story building, described as a ground floor office and eleven second and third floor apartments. He also applied for a bulk variance from a loading-space requirement. As noted, the property was located in the Historic-District Commercial zone (HDC).

The Mayor was a Class I member of the nine-member (plus two alternates) Planning Board during 1988 and 1989. N.J.S.A. 40:55D-23(a). Other members of the Board included an official of the municipality appointed by the Mayor, Class II; a member of the governing body appointed by it, Class III; and other citizens of the municipality, non-office holders, appointed by the Mayor, Class IV. Ibid. The terms of office vary. N.J.S.A. 40:55D-23(b). Members are disqualified by statute in matters where they have a direct or indirect personal or financial interest. Ibid.

The Township of Neptune's governing body is a five-member Township Committee. The public votes for and elects the members of the Committee at large. The Committee selects the Mayor from among its five members. The Class II Planning

Board member, who must be an official of the municipality, was Gene Marks, Sr., who was appointed by Mayor Rizas. Marks participated and voted in favor of the decision. Marks also was the building inspector, construction official and code enforcement supervisor (total salary $37,500). His appointment resolution for these three positions adopted on September 26, 1988 was moved by Mayor Rizas and approved by a 3-2 vote of the Committee. His qualification to participate was challenged. The Class III member, Daryl Daniels, also a member of the governing body, disqualified himself. As to the six Class IV members, Mayor Rizas had appointed Erman K. Jones, the Chair who voted in favor of the application and Paul J. Roberts, who disqualified himself. The remaining Class IV appointments, holdovers from prior administrations, were: David Mooj, Carl E. Ulmer, Peter Stagg and Robert Kibbler. Mooj, Ulmer and Kibbler did not participate in the decision because they had not attended all of the meetings; Stagg voted against the application. The two alternates, Joe Sears and George Basket, see N.J.S.A. 40:55D-23.1, were appointed by Mayor Rizas; Sears voted against and Basket in favor of the application.

As to the relevant professional appointments, they were made by the entire Planning Board, not solely by the Mayor. N.J.S.A. 40:55D-24. The Planning Board engineer disqualified himself. The engineer who participated and advised the Board had served in a prior administration and was not appointed by the Mayor. The Planning Board's planner apparently had been in office for a lengthy period but had been reappointed during 1989. The Mayor himself had moved the resolution appointing the Solicitor for the Planning Board, Mr. Smith. Throughout the proceedings, timely objections were made by counsel for the objectors and the public to the Mayor's application because he was the developer and to the participation of various members and staff.

The hearings on the application began on March 22, 1989. Two basic substantive objections were lodged against the application. The first objection was directed at the Planning

Board's jurisdiction. The objectors argued that the HDC zone required a commercial use as the "principal" use of the building. The relevant ordinance, Article XXI Regulation, Sec. 3.1 includes "professional and business offices" as a "principal use." Apartments in "mixed use commercial residential structures" are allowed in the zone as an "accessory use." Accessory uses are defined in the Zoning Ordinance Section 10.1(B)(2) as "a use customarily incidental and subordinate to the main use conducted on a lot, whether the accessory use be conducted in the main or accessory building." The objectors contended that because the proposed building had a ratio of eleven apartments to one office, the "principal" use was residential and therefore not in compliance. The objectors urged that the application required a "use" variance and should first go before the Board of Adjustment. The objectors also argued that the proposed building created severe density, parking and traffic problems. They felt that the defendant should provide some off-street parking as the property fronted on a narrow street. The ordinance did not have any off-street parking requirements for this situation.

Mayor Rizas' attorney argued that the apartments were a permitted use, fitting within the zoning ordinance's language. He stressed that the ordinance did not define what percentage of the building must be a "principal use" to comply and that there was no indication that "accessory," as defined by the ordinance, meant "related to or incidental to the ...

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