On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Approved for Publication February 9, 1996. As Corrected April 2, 1996.
Before Judges Michels, Baime and Kimmelman. The opinion of the court was delivered by Michels, P.j.a.d.
The opinion of the court was delivered by: Michels
The opinion of the court was delivered by MICHELS, P.J.A.D.
Plaintiffs Barbara Petrick and Elisabeth K. DuVal appeal from a judgment of the Law Division entered in favor of defendants Planning Board of the City of Jersey City (Planning Board) and Christ Hospital, Inc. (Christ Hospital) that dismissed plaintiffs' action challenging the Planning Board's approval of a site plan for a parking garage to be constructed by Christ Hospital on property located in Jersey City, New Jersey.
Christ Hospital applied to the Planning Board for site plan approval for a garage to be constructed on its property. Plaintiffs, residents of the neighborhood in which the proposed garage would be built, objected to the proposed construction, raising health, safety and environmental concerns. Despite plaintiffs' objections, the Planning Board granted Christ Hospital site plan approval for the parking garage which was subsequently memorialized by a resolution. Planning Board Chairman Sheehan, Vice-Chairman Bromirski and Commissioners Domingo, McCullers, and Holloway voted in favor of the resolution. Commissioner Vega voted against the resolution. Commissioners Judge and McLaughlin abstained.
Plaintiffs instituted this action by a Complaint in Lieu of Prerogative Writs seeking to set aside the resolution. They claimed that the Planning Board proceedings were invalid because (1) Commissioner Vega had a conflict of interest by virtue of the fact that his wife was an employee of Christ Hospital at the time the application was considered and voted upon by the Planning Board; (2) no member of the Jersey City Environmental Commission served on the Planning Board as required by N.J.S.A. 40:55D-23a; and (3) two Planning Board commissioners were employed by Jersey City in violation of N.J.S.A. 40:55D-23a. Christ Hospital was granted leave to intervene. Following a hearing, the trial court held that the action of the Planning Board in granting Christ Hospital's application for site plan approval for the parking garage was valid and dismissed plaintiffs' complaint. This appeal followed.
Plaintiffs seek a reversal of the judgment and a declaration that the Planning Board's resolution was invalid and unenforceable, contending that (1) Commissioner Vega, who had a conflict of interest, participated in the hearing; (2) there was no Environmental Commission member on the Planning Board as required by N.J.S.A. 40:56A-1 and N.J.S.A. 40:55D-23a; and (3) two Planning Board members were illegally seated because they were also employed by Jersey City in violation of N.J.S.A. 40:55D-23a.
We have carefully considered the record and the arguments presented and are satisfied that the trial court properly upheld the Planning Board resolution approving the preliminary and final site plan approval for the proposed Christ Hospital parking garage and that all issues of law raised are clearly without merit. R. 2:11-3(e)(1)(E).
It is fundamental that "the public is entitled to have its representatives perform their duties free from any personal or pecuniary interests that might affect their judgment." Barrett v. Union Tp. Comm., 230 N.J. Super. 195, 200, 553 A.2d 62 (App. Div. 1989); see also In re Bergen County Util. Auth., 230 N.J. Super. 411, 419, 553 A.2d 849 (App. Div. 1989); Bd. of Educ. of West Orange v. Int'l Union of Operating Eng'rs, Local No. 68, 109 N.J. Super. 116, 120, 262 A.2d 426 (App. Div. 1970); La Rue v. E. Brunswick Tp., 68 N.J. Super. 435, 446-47, 172 A.2d 691 (App. Div. 1961); Aldom v. Borough of Roseland, 42 N.J. Super. 495, 500-01, 127 A.2d 190 (App. Div. 1956). At common law, "[a] public official is disqualified from participating in judicial or quasi-judicial proceedings in which the official has a conflicting interest that may interfere with the impartial performance of his duties as a member of the public body." Scotch Plains-Fanwood Bd. of Educ. v. Syvertsen, 251 N.J. Super. 566, 568, 598 A.2d 1232 (App. Div. 1991); see also Wyzykowski v. Rizas, 132 N.J. 509, 523, 626 A.2d 406 (1993); Griggs v. Borough of Princeton, 33 N.J. 207, 219-20, 162 A.2d 862 (1960); Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 265, 146 A.2d 111 (1958); Barrett v. Union Tp. Comm., supra, 230 N.J. Super. at 200; Sokolinski v. Mun. Council of Woodbridge Tp., 192 N.J. Super. 101, 103, 469 A.2d 96 (App. Div. 1983); McNamara v. Borough of Saddle River, 64 N.J. Super. 426, 429-30, 166 A.2d 391 (App. Div. 1960).
This principle has been codified in N.J.S.A. 40:55D-23b of the Municipal Land Use Law (Land Use Law)," which, in pertinent part, states that "no member of the planning board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest."
In Van Itallie v. Borough of Franklin Lakes, supra, 28 N.J. at 268, our Supreme Court provided guidance regarding the analysis that should be undertaken in reviewing the alleged conflict of interest of a municipal board member, pointing out:
the decision as to whether a particular interest is sufficient to disqualify is necessarily a factual one and depends upon the circumstances of the particular case. Aldom v. Borough of Roseland, supra, 42 N.J. Super. at page 503. No definitive test can be devised. The question will always be whether the circumstances could reasonably be interpreted to show that they had the likely capacity to tempt the official to depart from his sworn public duty.
See also Wyzykowski v. Rizas, supra, 132 N.J. at 523; Wilson v. City of Long Branch, 27 N.J. 360, 395-96, 142 A.2d 837, cert. denied, 358 U.S. 873, 79 S. Ct. 113, 3 L. Ed. 2d 104 (1958); Monmouth Medical Ctr. v. State Dep't of Health, 272 N.J. Super. 297, 318, 639 A.2d 1129 (App. Div.), certif. denied, 137 N.J. 310 (1994); Barrett v. Union Tp. Comm., supra, 230 N.J. Super. at 201; Lafayette Tp. v. Bd. of Chosen Freeholders, 208 N.J. Super. 468, 473, 506 A.2d 359 ...