On appeal from a Final Administrative Agency Decision of the Local Finance Board, Department of Community Affairs, CFB-3718-04.
The opinion of the court was delivered by: Wefing, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Fuentes and Graves.
John F. Zisa appeals from a Final Decision of the Local Finance Board that he had violated N.J.S.A. 40A:9-22.5(c) and (d) of the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to .25, and fining him $200. After reviewing the record in light of the contentions advanced on appeal, we reverse.
The City of Hackensack operates under a council/manager form of government. The City Council consists of five members, who are elected at-large, every four years. The Council, by a public vote, selects one of its members to the post of mayor. Zisa was selected as mayor by the members of the Council in 1989 and continued in that position at the time pertinent to this appeal. As a municipal official, Zisa is subject to the provisions of the Local Government Ethics Law.
In Hackensack, the positions of councilman and mayor are part time, and Zisa, in addition to serving as mayor, also maintains an insurance agency. He is also the managing member of Underwood Properties, LLC, a real estate holding company.
A persistent issue confronting Hackensack in its efforts to revitalize and maintain its central business area is the provision of adequate parking. In February 2000, Hackensack contracted to buy property located at 295 State Street for use as a parking lot. The property suffered from environmental contamination, and the contract called for the City to be responsible for remediation, in addition to paying the purchase price of $600,000. In March 2000, the City Council passed Ordinance 5-2000, which authorized the issuance of bonds in an amount sufficient to purchase the property located at 295 State Street, conduct the necessary remediation and convert it into a municipal parking lot. The City took title to the lot in May 2000. Zisa, as the mayor, participated in the discussion and voting on this question. No issue is raised before us as to the propriety of his actions in that regard.
After the City closed on its purchase of 295 State Street, Zisa negotiated the purchase of property located at 295 Main Street.*fn1 On June 28, 2000, he executed a contract to buy this property. Before taking title, he engaged in negotiations with the Bergen County Special Services School District to lease space to the District in the building at 295 Main Street.
The District required, as a condition of entering such a lease, that it have the use of sixty-five parking spaces. The District did not require that those spaces be in a paved lot but did require that they be in close proximity to 295 Main Street.
Zisa knew that 295 Main Street only had twenty parking spaces available to its tenants. Hackensack had previously adopted an ordinance permitting the City to rent spaces in municipal parking lots to private parties in accordance with a specified fee schedule. On August 22, 2000, Zisa's personal attorney wrote to Hackensack's City Manager and inquired about the possibility of renting forty-five parking slots in the municipal parking lot due to be constructed at 295 State Street. Under the City's ordinance, the fee for such a rental would be $55 per month per space, and the City agreed to rent forty-five spaces to Zisa in the as-yet unbuilt parking lot at 295 State Street. Zisa received no special consideration or terms in connection with that agreement.
Once Zisa was assured that he would able to provide the necessary parking to the District, he closed on his purchase of the property at 295 Main Street. He also was able to arrange to rent for the District forty-five parking spaces at another nearby unpaved municipal lot until the work necessary to transform the empty lot located at 295 State Street into a paved municipal parking lot was completed. These spaces also rented for $55 per month per space. Zisa and the District executed a five-year lease for 295 Main Street on September 27, 2000.
Again, no issue is raised before us as to the propriety of Zisa's purchase of this building, his rental of the forty-five parking spaces at 295 State Street or his ...