July 24, 2008
KIKIS A. KYRIACOU AND JUDITH KYRIACOU, PLAINTIFFS-APPELLANTS,
JAMES LAVIN, JEANNE LAVIN, AND HOLMDEL TOWNSHIP ZONING BOARD OF ADJUSTMENT, DEFENDANTS-RESPONDENTS, AND
MICHAEL T. HARMYK AND BARBARA HARMYK, DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5795-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 6, 2008
Before Judges Parker, Coleman and Lyons.
In this challenge to the Holmdel Township Zoning Board's (Board's) issuance of a variance to defendants James and Jeanne Lavin, plaintiffs Kikis A. and Judith Kyriacou appeal from a final judgment entered on October 12, 2006, finding in favor of defendants and dismissing the complaint.
Defendants James and Jeanne Lavin contracted to purchase Lots 62 and 64 from defendants Michael T. and Barbara Harmyk. The Lavins indicated they wanted to build a 6,200 square foot Victorian farmhouse on Lot 62. At the time, they had no plans to build anything on Lot 64. Subsequently, the Lavins indicated they intended to build a house on Lot 64.
The Lavins applied to the Holmdel Zoning Board for a variance from the street frontage requirement for both lots. In April, May and October 2003, the Zoning Board held hearings on the application. During the hearings, plaintiffs objected to the variance. The Board granted the application, however, and plaintiffs filed a complaint in lieu of prerogative writs on December 17, 2003. The Superior Court reversed the approval on September 21, 2004, and the Lavins appealed. On February 17, 2006, we reversed the trial court's decision and reinstated the Zoning Board's grant of the variance. Plaintiffs then petitioned the Supreme Court for certification. The Court granted certification on May 30, 2006, and summarily remanded the matter to the Law Division with five specific questions to be addressed. A bench trial was conducted in the Law Division, which resulted in an affirmance of the variance.
Plaintiffs have appealed once again, arguing that (1) a 150 foot stream buffer is required as a matter of law for development of Lots 62 and 64; (2) the trial court erred in its application of the merger doctrine; (3) Board member Carol Balmer, who was ineligible to vote on the matter, improperly participated in the hearings, thereby invalidating the approvals; and (4) the trial court erred in relieving the Lavins of the requirement to prove that they made sufficient efforts to acquire additional property from plaintiff.*fn1
We are constrained to reverse and remand the matter for a rehearing because of Carole Balmer's conflict of interest and we are directing the Board to undertake further fact finding on the merger issues. We will not address the remaining issues which must be considered by the Board at the rehearing.
Plaintiffs claim that after the hearings and the Board's grant of the variance, they learned that James Lavin served as chair of the campaign committee for Board member Carole Balmer when she ran for the township committee in 1990 and 1993. Plaintiffs contend that Lavin's political participation in Balmer's campaigns created a conflict of interest that invalidated the hearings. We agree.
We have carefully reviewed the hearing transcripts, which indicate that although Balmer was not present for the April 23, 2003 hearing, she indicated at the next hearing on May 28, 2003 that she had read the transcript of the first hearing and moved to make corrections in it. At the May 28, July 9 and October 8, 2003 hearings, Balmer actively participated by asking questions and engaging in discussions on the application. At the conclusion of the October 8 meeting, Balmer asked the Board attorney, "Since I left the room for a coughing spasm, can I vote on this?" The Board attorney responded, "That's going to create a problem. You could read the transcript for the time you were out of the room." When the chair called for the vote on the application, Balmer did not cast a vote. The resolution reflects Balmer's "non-eligible" status.
In reviewing this issue, the Law Division judge initially stated if we were sitting there in the hearing room of the Board of Adjustment on the day of the hearing, and somebody raised that, it might be wise to play it safe and say, maybe she should sit out, maybe we should play it safe, don't have the issue coming up. But that's not the issue in front of me today.
The issue in front of me today is, now that it's all done and that event is long past, is that really the type of situation under which you can invalidate the adoption of a resolution based on the fact that she participated.
The court considered the criteria set forth in Wyzykowski v. Rizas, 132 N.J. 509, 525-26 (1993), which focuses on whether the official derived a direct or indirect financial benefit from his or her vote. The court concluded that the relationship between Lavin and Balmer was too remote in time to have created a conflict of interest. The court also relied on Van Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 269 (1958), to support its decision, finding that it was "entirely too remote . . . . that the Board member's official judgment was compromised by this campaign relationship 12 to 13 years ago."
Whether a conflict exists is a fact-sensitive question that "depends on whether, under the circumstances, a particular interest 'had the likely capacity to tempt the official to depart from his sworn public duty.'" Thompson v. City of Atlantic City, 190 N.J. 359, 375 (2007) (quoting Van Itallie, supra, 28 N.J. at 268). "[I]t is the potential for conflict, rather than proof of an actual conflict or of actual dishonesty" that is important. Thompson, supra, 190 N.J. at 374 (emphasis added); accord Griggs v. Borough of Princeton, 33 N.J. 207, 219 (1960) (stating "[t]he question is whether there is a potential for conflict, not whether the public servant succumbs to the temptation or is even aware of it"). If a conflicted Board member took part in proceedings, "the Board proceedings, in their entirety, are void and must be set aside." Haggerty v. Red Bank Borough Zoning Bd. of Adjustment, 385 N.J. Super. 501, 517 (App. Div. 2006).
The record here is devoid of facts explaining the nature of Balmer's and Lavin's political relationship; there is no information as to whether they have a continuing relationship, and if so, the nature of it. If Balmer had disclosed her relationship with Lavin prior to the hearings, plaintiffs could have objected to her participation, and the record could have been developed. Indeed, during argument before the trial court, the Board's counsel said that if Balmer had disclosed her relationship before the hearings began he "would have told her to step down."
While the elections in which Lavin participated in Balmer's campaign were more than ten years before the hearing, the appearance of impropriety is significant in the political context, where all too often the quid pro quo for political support is access to the official. We emphasize that nothing in the record before us leads us to believe that Balmer was influenced by Lavin's participation in her campaigns. It is the appearance of influence that creates the conflict. Higgins v. Advisory Committee on Professional Ethics of Supreme Court, 73 N.J. 123, 129 (1977) (stating that "'appearance' alone may be sufficient to present an ethical problem even though no actual impropriety exists," but must be "something more than a fanciful possibility"). Accordingly, the matter is remanded for a new hearing without Balmer's participation.
Plaintiffs argue that the Board did not have jurisdiction to grant variances to the Lavins because Lots 59, 62 and 64 had merged and required subdivision by the Planning Board before the Harmyks could lawfully convey them to the Lavins.
We apply the same standard of review as the Law Division to a zoning board's decision on a variance application. Bressman v. Gash, 131 N.J. 517, 529 (1993). We will set aside the Board's decision "only when [the decision is] arbitrary, capricious or unreasonable." Simeone v. Zoning Bd. of Adjustment of Twp. of East Hanover, 377 N.J. Super. 417, 425-426 (App. Div. 2005). As long as the decision is "supported by substantial evidence in the record and reflect[s] a correct application of the relevant principles of land use law," it should be affirmed. Lang v. Bd. of Adjustment of N. Caldwell, 160 N.J. 41, 58-59 (1999).
The merger doctrine provides that adjoining substandard lots that have the same owner and that were created under the Old Map Act, N.J.S.A. 46:23-1 to -9 (repealed by L. 1953, c. 358),*fn2 will be deemed to have merged into one conforming lot, requiring a subdivision before any one of the lots may be separately conveyed. Jock v. Zoning Bd. of Adjustment, 184 N.J. 562, 569 (2005) (discussing Loechner v. Campoli, 49 N.J. 504, 508, 512 (1967)).
Merger is said to be "theoretical" in the sense that it does not preclude the treatment of the lots as separate for other purposes. The official map is not affected; neither are taxes, Young v. Bergen County Bd. of Taxation, 5 N.J. Tax 102, 108-09 (1982), or financing arrangements altered, Family Savings Bank v. Devincentis, 284 N.J. Super. 503, 509, 665 A.2d 1119 (App. Div. 1995). See David J. Frizzell, New Jersey Practice Land Use Law, § 13.18 (2d ed. 1999). Indeed, the issue of merger will never arise unless the property is specifically brought to the attention of the relevant land use board. Ibid. Thus, in reality, the so-called merger doctrine is simply the characterization of adjacent undersized lots in common ownership as part of a larger tract or parcel with an eye toward effectuating present day zoning laws.
Fred McDowell, Inc. v. Bd. of Adjustment of the Township of Wall, 334 N.J. Super. 201, 224, 757 A.2d 822 (App. Div. 2000). [Jock, supra, 184 N.J. at 578-79.]
If the lots merged, a zoning board lacks jurisdiction to grant a variance on any one of them. Bridge v. Neptune Twp. Zoning Bd. of Adjustment, 233 N.J. Super. 587, 596 (App. Div. 1989) (discussing N.J.S.A. 40:55D-60(a) and N.J.S.A. 40:55D-76). Further, none of the lots can be legally conveyed unless the planning board grants subdivision approval. N.J.S.A. 40:55D-37; Holmdel Township, New Jersey, Ordinance § 30-18.4 (1976).
If the owner illegally conveys a merged lot he or she is "subject to a penalty not to exceed $1,000.00, and each lot disposition so made may be deemed a separate violation." N.J.S.A. 40:55D-55. The municipality may also file a civil suit for injunctive relief and to set aside the conveyance. Ibid.
Here, the Board did not address the issue of merger in its resolution, even though plaintiffs argued it to the Board, and the record does not contain sufficient information for us to review the issue. Accordingly, in its rehearing, the Board must consider the merger issue and take factual testimony relevant to the possible merger of the lots.
In hearing the issue, the Board should focus on the four criteria that must be satisfied for a merger: (1) the lots must have existed under the Old Map Act; (2) the lots must be nonconforming with a zoning ordinance; (3) one party must own the lots; and (4) merging the lots must create, or more closely create, a lot that conforms with the ordinance. Loechner, supra, 49 N.J. at 512; Dalton v. Ocean Twp. Zoning Bd. of Adjustment, 245 N.J. Super. 453, 461 (App. Div.), certif. denied, 126 N.J. 324 (1991). Of paramount importance is the identity of the property owner, as lots will not merge if they are titled in "legally separate parties." Jock, supra, 184 N.J. at 569.
The information now in the record as to who owned Lots 59, 62 and 64 and when they were created consists of Lavin's statement that Lots 62 and 64 were created in 1892 and that the Harmyk "family got these lots many, many years ago, before many of us were probably even born, and had them all these years and have farmed them." Lavin's attorney added that "[t]he seller of the property . . . has told me, although that's hearsay, that his family bought these properties as they look now[,] sometime in the 1940s." Neither of those statements is sufficient to establish ownership of the lots and when they were created.
The Harmyks admitted in their answer to plaintiffs' complaint that they were the owners of Lots 59, 62 and 64. That admission, however, is insufficient to establish when the lots were created and whether there were additional owners of the property at that time. Since the Harmyks may be subject to a penalty for conveying the lots if they were, in fact, merged, as a matter of fairness, the Harmyks should have the opportunity to address the issue and allow the parties to fully develop the record.
Reversed and remanded for a rehearing in accordance with this opinion. We do not retain jurisdiction.