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Care of Tenafly Inc. v. Tenafly Zoning Board of Adjustment

January 27, 1998

CARE OF TENAFLY, INC., A NOT FOR PROFIT CORPORATION OF THE STATE OF NEW JERSEY, JANICE JACOBS AND GAYLE CHERTOFF, PLAINTIFFS-RESPONDENTS,
v.
THE TENAFLY ZONING BOARD OF ADJUSTMENT, DEFENDANT, AND THE MAYOR AND COUNCIL OF THE BOROUGH OF TENAFLY AND THE BOROUGH OF TENAFLY, DEFENDANTS-RESPONDENTS, AND THE GREAT ATLANTIC & PACIFIC TEA COMPANY, DEFENDANT-APPELLANT. JAMES HIGGINS, JUDY ALDERSON, RICHARD D. LEVIN, JAMES J. VIRGONA, THOMAS J. PEROG, APRIL J. BRADLEY DELUSIO, DAVID STEINBERG, SHAKARJIAN REALTY CO., INC., MILTON HART, CONSTANTINE H. CADENAS, FRED A. SELSKY, CONSTANCE SELSKY, RUDOLPH BERNSTEIN, PEARL BERNSTEIN, ALBERT STONE, ELINORE STONE, HOWARD SACHAROFF, HOPE SACHAROFF, DORIS FRANKLIN, COMMITTEE FOR TENAFLY BUSINESSES, AN UNINCORPORATED ASSOCIATION, AND THE GRAND UNION COMPANY, PLAINTIFFS-RESPONDENTS,
v.
BOROUGH OF TENAFLY AND MAYOR AND COUNCIL OF THE BOROUGH OF TENAFLY, DEFENDANTS-RESPONDENTS, AND THE BOARD OF ADJUSTMENT OF THE BOROUGH OF TENAFLY, DEFENDANT, AND THE GREAT ATLANTIC & PACIFIC TEA COMPANY, DEFENDANT-APPELLANT. CARE OF TENAFLY, INC., A NOT FOR PROFIT CORPORATION OF THE STATE OF NEW JERSEY, JANICE JACOBS AND GAYLE CHERTOFF, PLAINTIFFS-RESPONDENTS,
v.
THE TENAFLY ZONING BOARD OF ADJUSTMENT, DEFENDANT, AND THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., DEFENDANT-APPELLANT. JAMES HIGGINS, JUDY ALDERSON, RICHARD D. LEVIN, JAMES J. VIRGONA, THOMAS J. PEROG, APRIL J. BRADLEY DELUSIO, DAVID STEINBERG, SHAKARJIAN REALTY CO., INC., MILTON HART, CONSTANTINE H. CADENAS, FRED A. SELSKY, CONSTANCE SELSKY, RUDOLPH BERNSTEIN, PEARL BERNSTEIN, ALBERT STONE, ELINORE STONE, HOWARD SACHAROFF, HOPE SACHAROFF, DORIS FRANKLIN, COMMITTEE FOR TENAFLY BUSINESSES, AN UNINCORPORATED ASSOCIATION, THE GRAND UNION COMPANY, CAROLYN J. SEWELL, CHARLES F. SEWELL, HERBERT LEVETOWN, BERNICE LEVETOWN, ARTHUR BAUER, SUSAN BAUER, JOSEPH BIEGER, ELAINE BIEGER, WYCKOFF QUALITY BAKERY TENAFLY, INC., RUDY FROEDER, AT RISK ENTERPRISES, INC., MANSOOR ARAIN, ROSALIND STEINBERG, RONALD CITRO AND KETAN KENIA, PLAINTIFFS-RESPONDENTS,
v.
TENAFLY ZONING BOARD OF ADJUSTMENT, DEFENDANT, AND THE GREAT ATLANTIC & PACIFIC TEA COMPANY, INC., DEFENDANT-APPELLANT.



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

Before Judges Havey, Landau and Collester.

SYLLABUS BY THE COURT

In this zoning case, defendant Great Atlantic and Pacific Tea

Company, Inc. (A&P), appeals from a judgment declaring invalid a

variance and site plan approval granted to it by defendant Tenafly

Zoning Board of Adjustment (Board). Judge Hamer, in a comprehensive

oral opinion, concluded that a member of the Board, whose mother owned a

commercial enterprise approximately fifty feet from A&P's site,

possessed a disqualifying conflict of interest which invalidated the

approvals. We agree and affirm.

The opinion of the court was delivered by: The opinion of the court was delivered by Havey, P.j.a.d.

Argued November 3, 1997

In November 1993, A&P applied to the Board for a special reasons variance and site plan approval to construct a supermarket with attached satellite stores on a 9.9 acre tract in Tenafly. The lot is zoned M-1, which permits uses such as light manufacturing, warehousing, office buildings and research laboratories. Since a retail supermarket is not a permitted use, a special reasons variance was required.

Prior to the first public hearing on November 22, 1993, the Board conducted a public "work session," at which Board member John Armaniaco disclosed that his mother owned commercial property on Piermont Road, approximately 50 feet from the north-westerly point of A&P's site. The Board's attorney advised Armaniaco that he was not in conflict of interest and could participate in the hearing. The remaining Board members concurred with the attorney's opinion. Neither A&P representatives, nor representatives from any objectors, were present during the workshop.

During the subsequent eighteen public hearings, Grand Union Company and its employee, James Higgins, appeared in opposition to A&P's application. Neither opponent, nor any other interested party, raised the conflict of interest claim during the course of the hearings. At the close of the testimony, the Board conducted an executive session. During the session Armaniaco again raised the potential conflict of interest question and was again advised by the Board's attorney that no conflict existed. On October 10, 1994, the Board by written resolution, granted the special reasons variance by a five-to-two vote. Armaniaco voted in favor of the resolution.

Care of Tenafly, Inc. (Care), Grand Union and several Tenafly residents filed appeals to the Tenafly Borough Council. The Council affirmed the grant of the use variance by a three-to-three vote. See N.J.S.A. 40:55D-17e.

Subsequently, Care and others filed an action in lieu of prerogative writs challenging the special reasons variance. Grand Union ...


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