On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Bilder, Baime and Wallace. The opinion of the court was delivered by Bilder, J.A.D.
[260 NJSuper Page 342] This is an appeal by abutting objecting landowners from an order of the Law Division upholding a determination of the Monmouth Beach Zoning Board of Adjustment granting defendants Robert and Sharon Holden a minor subdivision of their existing residential property which lies within two zones and also granting the lot owners' application for use and bulk variances to permit the construction of a second residential home on the property. The detailed facts are set forth in the trial Judge's oral opinion of October 2, 1991 and need not be repeated here. Suffice it to note that the new lot lies partly in a business zone (Zone B) and partly in a residential zone (Zone A-1), and that relief was granted with respect to a use variance permitting the residence in the business zone, the lot depths for both resulting tracts, and from the rear yard setback for one of the tracts. On appeal, plaintiffs contend, as they did below, that the action of the Board was arbitrary, capricious, and unreasonable and that the Holdens failed to establish the statutory criteria required to justify the grant of the variances. Plaintiffs also contend the participation of a disqualified member of the Board requires that its action be voided. Because we agree with the plaintiffs that the participation amounted to a
substantive involvement in the deliberative process, we need not consider their other contentions.
At the start of the hearing of the Holden application, one of the Board members, Edward Thayer, announced he would have to remove himself from the Board for that application. The Chairperson concurred stating: "I realized that you would." The record is barren as to the basis of either statement. We do not know the reason for the disqualification, but the fact that Thayer felt participation would be improper and that the Chairperson apparently concurred in that judgment is sufficient in itself to make any participation by Thayer improper and, if that participation was capable of forming a substantive part of the deliberative process, to require the Board action be voided.
An examination of the record discloses that Thayer participated in the hearing in a significant manner on three occasions. The first time, apparently because of personal knowledge of the municipality's zoning history, he gave the Board background information as to why the Holdens' property and a number of adjacent residential properties were included in the business zone (Zone B) rather than the surrounding residential zones (Zones A and A-1).*fn1 Had he stopped at this, although it might be viewed as an improper participation, it could not be considered to be capable of forming a part of or affecting the deliberative process and was, in terms of the spirit of impartiality which must govern the Board's proceedings, see Baghdikian v. Board of Adjustment Ramsey, 247 N.J. Super. 45, 48, 588 A.2d 846 (App.Div.1991), at most an innocuous impropriety. It represented the type of historical information which a zoning board often relies upon its members to furnish and is totally proper when fully disclosed on the record. Id. at 49-51, 588 A.2d 846.
The difficulty is that Thayer went on to point out the residential nature of Zone B lots in the neighboring area and in reply to a comment by the Chairperson that the Board recommend a change in zoning to the Planning Board, he "strongly suggest[ed] that they do that." This comment seriously impacted on the very issue before the Board, the advisability of a variance to permit another residential property in this business zone. It could not be characterized as innocuous.
Thayer's second comments were volunteered in connection with a neighboring owner's concern about the manner in which utilities would be furnished to the proposed new residence and his interest in seeing the use of underground service. After Holden expressed agreement with the concept, Thayer interjected:
Can I answer that question? I'm retired from Jersey Central. I was in charge of Distribution Engineering Department a month ago, so I know the answer for that.
There followed his opinion as to what the electric company would do. Here again, Thayer's comments could not be considered capable of affecting the deliberative process and were, at most, an innocuous impropriety.
Like his first comments, Thayer's final comments could not be characterized as innocuous. At the Conclusion of the statements by the objecting abutting owner, Mrs. Szoke, one of the plaintiffs, Thayer made a strong statement of his personal opinion as to the merits of the Holden application.
I'd like to give an opinion. I feel this is the best use for the property because if you take, going by this lady's ...