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Kyriacou v. Lavin

July 24, 2008

KIKIS A. KYRIACOU AND JUDITH KYRIACOU, PLAINTIFFS-APPELLANTS,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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