Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'hern, Garibaldi and Stern
The opinion of the court was delivered by
The main questions in this appeal are: (1) whether the provision in a municipal ordinance of apartments as an accessory use to commercial uses authorizes a mixed-use project in which the commercial uses and the apartment uses have no relationship other than that they are in the same structure; and (2) whether planning board members appointed by a mayor have thereby a "personal or financial interest," N.J.S.A. 40:55D-23.b., in the outcome of a development application submitted by the mayor in a private capacity, or conversely, whether the appointive power or official status disables the mayor from appearing before such members. We hold that the enumeration of apartments as an accessory use to commercial uses, without more, contemplates that the apartments and the primary use have some relationship other than that they are in the same building or structure. We also hold that one of the planning board members had a disqualifying interest in the outcome of the application. We thus affirm in part and modify in part the judgment of the Appellate Division invalidating the development approvals and remanding the matter to the planning board. Because a variance will be required, the matter must be submitted to the zoning board of adjustment for approval of a use not permitted by the zoning code. Although we need not now pass on all of the issues concerning the status of the mayor or planning board members appointed by him (the subject mayor's term of office has since expired), we have reservations that the opinion below may have been overbroad insofar as it suggests that the appointive status of planning board members might automatically create a "personal or financial interest" sufficient to disqualify them from acting in matters involving the mayor as a private citizen or to disqualify the mayor from appearing before them in such capacity. We expect that the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25, enacted after the circumstances of this case, will provide clearer guidance for local officials in the future.
For purposes of this appeal, we accept generally the version of the case set forth in the briefs of defendant Robert E. Rizas ("Rizas" or "the Mayor"). Rizas was the Mayor of the Township of Neptune in 1989 when he filed an application with the Neptune Township Planning Board ("the Board") to develop a previously-vacant lot on Lawrence Avenue in the Ocean Grove section of the Township. The property is located in the Historic District-Commercial Zone ("the HD-C zone") and meets the zone's lot-size requirements. Plaintiffs, the Wyzykowskis, are nearby property owners.
The original application proposed the construction of a three-story building comprised of eleven residential units and one office space. The application envisioned the one office space and two residential units on the first floor and the remaining residential units on the second and third floors.
At a March 22, 1989, hearing, plaintiffs argued that the HD-C zone required a "principal" use that must be commercial in nature and permitted only residential uses that were "accessory" to the principal use. They challenged the jurisdiction of the Board because the "principal" use of the property envisioned in defendant's application was residential and therefore defendant required a use variance that could be granted only by the board of adjustment. They also raised an off-street-parking issue.
Rizas argued that the proposed structure provided uses that were compatible with the ordinance because the ordinance did not define what percentage of the building must be a "principal" use to be in compliance. He also contended that residential uses were permitted "accessory" uses and therefore did not have to meet the usual test of being related, or incidental, to the "principal" use. After Discussion, the Board continued the matter to its meeting of May 24, 1989.
Prior to the meeting of May 24, 1989, Rizas filed a revision to the site-plan application with the Board to increase the commercial use by dedicating the entire first floor of the structure to three offices and reducing the number of residential units from eleven to six, all to be located on the second and third floors. To accommodate concerns about off-street parking, the building was relocated on the lot in order to create five off-street parking spaces and one space for drivers with disabilities. Both the original application and the revision contained a request for one variance that would eliminate a loading space otherwise required by the ordinance. All other bulk requirements of the ordinance were satisfied by the original application and the revision.
The Law Division denied a preliminary request by plaintiffs to restrain the Board and permitted the May 24, 1989, hearing to go forward. The Board determined that it had jurisdiction, that the revisions to the application had been properly filed, and that a new notice was not necessary. The May 24, 1989, meeting was continued until July 26, 1989. However, prior to that date the Board scheduled a special meeting on July 12, 1989. The Board concluded, after hearing the available testimony on July 12, including Rizas' introduction of a variety of exhibits, that the hearing would be continued to the meeting on July 26, 1989, to allow for production of additional testimony that the plaintiffs desired and to permit anyone who had intended to be present on July 26 and who was unaware of the substituted July 12 date to be present and to give testimony.
On the zoning map, two HD-C zones exist, one that includes the Lawrence Avenue property near State Highway 71 and the other in the downtown business district. At the July 12 meeting, Rizas produced a series of photos depicting properties in the downtown business zone of Ocean Grove that were, typically, three or four-story structures, the first floor housing commercial businesses and the floors above, residential apartments. Rizas submitted other exhibits that identified the area of the HD-C zone as it is fully developed in the downtown or central business area and also identified the existing uses in the HD-C zone on Lawrence Avenue where the subject property is located. The exhibits also identified the uses in the residential zone across the street from the subject property.
Rizas argued that because the first zoning ordinance affecting Ocean Grove had been adopted in 1979, at a time when the downtown business area was fully developed, one could reasonably assume that the Township planners had intended to provide in the zoning ordinances for the uses that were then in existence. The Appellate Division's opinion recited the background to the ordinance:
"Founded in 1869 by Methodists as a religious summer colony, the town of Ocean Grove was for 100 years run by the Methodist Camp Meeting Association. In 1979 the state supreme court declared Ocean Grove's government unconstitutional, and Ocean Grove became part of Neptune Township. At that point most of the community's strictly enforced blue laws, which included Sunday prohibitions against driving (the gates leading into the community were closed at midnight Saturday), bicycle riding, boating, swimming, and hanging laundry outside, no longer applied. It is still the case, however, that no alcoholic beverages can be sold or served, and that no one is allowed on the beach on Sundays until the church service is over. Many residents of the community, which has a population of about 6,000 in winter and 30,000 in summer, are supporting movements either to secede from Neptune or to get the township to issue special ordinances that apply only to Ocean Grove."
[Wyzykowski v. Rizas, 254 N.J. Super. 28, 37-38 n. 1 [603 A.2d 53] (1992) (quoting B. Westergaard, A Guide to the State 249-51 (Rutgers 1987)).]
In addition, that court noted that Ocean Grove's historic district is
"distinguished by its generally homogeneous Victorian look. Permanent tents (actually houses extended in the summer by tents) are clustered around the Great Auditorium; there are fine old hotel with porches on Ocean Ave.; the street signs are made of tile."
Rizas sought to show by the exhibits that his project was consistent with the existing uses in the fully-developed downtown business area and to illustrate that the 1979 ordinance intended that type of use when it provided for "principal" commercial uses and "accessory" residential uses in the HD-C zone. Although not all of the uses on Lawrence Avenue in the vicinity of the subject property are of the same character as those in the fully-developed downtown business area, the HD-C ordinance applies to both areas of Ocean Grove.
Plaintiffs' experts concentrated on the issue of "principal" versus "accessory" use. In addition, they discussed a number of traditional site-plan issues such as adequate parking and lighting, all of which were not required criteria of the ordinance but were factors to be considered for a site plan. Plaintiffs' planning expert viewed the uses in the downtown business district located in the HD-C zone as of no moment in evaluating whether the present application was in compliance with the ordinance. The expert admitted, under cross-examination, that the township planners likely noted the existing uses and endeavored to provide for their continuation as permitted uses when creating the HD-C zone in the 1979 ordinance. However, he said that the residential uses would all be non-conforming. He insisted that the uses in the central business district, which were developed prior to the ordinance, or even after the ordinance would "have no bearing on this application whatsoever." He believed that Rizas' application had to be assessed under current regulations and in the context of the immediately surrounding area. He found irrelevant to Rizas' application "what is occurring elsewhere in the HDC Zone location 12 or 15 blocks away."
The Wyzykowskis testified concerning housing and traffic patterns in the neighborhood and produced 225 letters in opposition to the project. Two members of the Board who spoke against the application wanted to have the property developed for residential uses, although residential structures are not permitted principal uses in this zone.
The municipal planner advised the Board that the projects met the use requirements of the zone, stating:
Typically, a mixed use structure you have a commercial property downstairs and then two or three levels above it, the second floor, the third floor apartments above it. The post office building is a typical example of that. * * * Technically, as the ordinance defines it this is a mixed use structure under the terms of the ordinance; therefore, it is a permitted use and this Board has jurisdiction over it.
The Board approved the application by a vote of three to two, out of nine regular members. Three of the members (including Rizas) who could have participated disqualified themselves. The Mayor had appointed the three members who approved the application. Plaintiffs then amended their prerogative-writ action. They renewed their jurisdictional challenge and asserted various other claims, including the deficiency of notice concerning the revised application and conflict-of-interest issues that they had raised before the Board. Specifically, they contested the participation by Board members appointed by the Mayor, and particularly objected to the participation of one building official. Rizas had moved that the official be appointed to three positions, Building Inspector, Code Enforcement Supervisor and Construction Official, at a combined salary of $37,500. The Mayor also cast the deciding vote in favor of the building official's appointment to the three positions. The official's term on the Board was to have run from January 1, 1989, to December 31, 1989. Plaintiffs also challenged the participation of the professional staff of the Board. As a member of the Board, the Mayor had been involved in their hiring.
The Law Division found no error in the proceedings except on the issue of defendant's right to bring the application to the Board. That court held that defendant was barred from presenting the application because he had been the Mayor at the time the application was filed, had appointed certain members of the Board, and had participated in the appointment of certain of its professional experts. The court concluded that although the record contained no evidence of actual impropriety by defendant or any of the Board members or its experts, the "perception of impropriety" precluded defendant from filing the application. Because defendant was no longer a member of the governing body, the court remanded the application to the Board for a new hearing.
On appeal, the Appellate Division essentially affirmed the judgment of the Law Division. It concluded that "the highly discretionary nature of the many questions raised during the course of this application procedure, the rigorous contest of the issues at each level, and the pertinent legal authorities all counsel a new consideration of the issues, free from potential taint." 254 N.J. Super. at 39, 603 A.2d 53.
The court found "that the Mayor's role here as the developer-applicant on this controversial project, calling for close judgment by his political colleagues, is a situation much closer to counseling setting aside the Board's action as potentially tainted." Id. at 40, 603 A.2d 53. It emphasized that the Mayor had been under no compulsion to seize on and promote the development opportunities in his town during his term of office, which had ended only a few months after this approval had been formally granted in August. "He could have at least refrained and waited until his term expired to seek relief and approvals from this Board when he no longer was the Township's chief executive." Id. at 41, 603 A.2d 53. The panel held that a mayor "should not pursue planning and zoning approvals for his own private development and commercial rental businesses while holding office without running the risk of judicial abrogation of those approvals as potentially tainted." Id. at 41-42, 603 A.2d 53. The court remanded the matter to the Board with the modification that the Board also reconsider the threshold jurisdictional issue of whether the applicant's proposal met the accessory-use standard in the local ordinance or required a use variance from the board of adjustment. We granted defendant's petition for certification, 130 N.J. 11, 611 A.2d 650 (1992).
The substantive issue in the case is whether the proposed apartments could properly be considered "accessory" to the commercial use of the property. Because the issue might arise again following the remand of this matter contemplated by the Appellate Division, we invited the parties to submit supplemental briefs in order to resolve the question. In our Discussion of the ordinance we use the present tense in referring to the provisions in the record before us. We have not sought to determine the current status of the ordinance. In a supplemental brief, plaintiffs inform us that the zoning ordinance has since been amended to put the subject property in a single-family zone.
Although courts defer to the expertise of municipal agencies in reviewing discretionary exercises of an agency's statutory powers, the interpretation of an ordinance is primarily a question of law. See Urban v. Planning Bd., 238 N.J. Super. 105, 111, 569 A.2d 275 (App.Div.), aff'd as modified, 124 N.J. 651, 592 A.2d 240 (1990).
Zoning ordinances frequently permit uses that are accessory or incidental to an expressly permitted use. However, they often do not define those permitted accessory uses, and courts must determine whether the proposed accessory use is "customarily incidental" to the main activity. In Charlie Brown of Chatham, Inc. v. Board of Adjustment, 202 N.J. Super. 312, 495 A.2d 119 (1985), the Appellate Division reviewed the law defining "accessory" uses. Zoning ordinances that allow "customarily incidental" accessory uses to the main activity "permit, by implication, any use that logic and reason dictate are necessary or expected in conjunction with the principal use of the ...