November 28, 2018
appeal from the Superior Court of New Jersey, Law Division,
Hudson County, Docket No. L-1246-16.
H. Shaljian and Seth I. Davenport argued the cause for
appellant (Shumann Hanlon, LLC, attorneys; Ronald H.
Shaljian, of counsel; Seth I. Davenport and Joseph Elmo
Cauda, Jr., on the brief).
Gregory F. Kotchick argued the cause for respondent (Durkin
& Durkin, LLC, attorneys; Gregory F. Kotchick, of counsel
and on the brief).
Judges Fuentes, Accurso and Vernoia.
Piscitelli v. City of Garfield Zoning Bd. of
Adjustment, 237 N.J. 333 (2019), our Supreme Court
recently addressed and clarified the standards governing
disqualifying conflicts of interests for municipal planning
and zoning board members and officials. Writing for the
Court, Justice Albin explained that members of these
municipal boards must be "free of conflicting interests
that have the capacity to compromise their judgments."
Id. at 338. Applying the Court's reasoning in
Piscitelli, we hold that plaintiff presented
sufficient evidence to establish reasonable grounds to
question the impartiality of two members of the Union City
Zoning Board of Adjustment (Board). Under the circumstances
presented here, the Law Division erred in failing to conduct
an evidentiary hearing to determine whether these two Board
members should have been barred from hearing plaintiff's
application for a use variance because their personal
interests might reasonably be expected to impair their
objectivity or independence of judgment.
derive the following facts from the record developed before
the Board and the Law Division.
2001, Manuel Alvarez rented a commercial space located at the
2400 block of Bergenline Avenue in Union City, and began
operating Panorama Live Poultry Market Corp. Mr. Alvarez lost
his sight "in a tragic accident" in 2003, causing
his wife Niurka Alvarez to take over the day-to-day operation
of the business. The business operated at this location until
2014, when the landlord raised the rent. In February 2015,
the Alvarezes found a property for sale at the 2500 block of
Central Avenue in Union City (City), that they thought was
suitable to relocate the business. This area of the City,
however, is zoned for residential use. Thus, to make the
relocation possible, the Alvarezes needed to secure a use
to Mr. Alvarez, the seller initially was not willing to
provide an open-ended "zoning contingency" clause
in the purchase contract because "there was another
person bidding on the property." To secure a two-month
"investigation" contingency, Mr. Alvarez agreed to
pay $50, 000 over his initial offer, for a total purchase
price of $685, 000. Mr. Alvarez testified that at the time he
made this decision, he was aware that: "I needed to make
sure that I was going to have the blessing by the
March 5, 2015, Mr. Alvarez and his wife Niurka met with Mayor
Brian P. Stack and Alex Velazquez, the head of the
City's Health and Housing Department. According to Mr.
Alvarez, this was the "one day in the week that [Mayor
Stack] receive[s] people to listen to their problems."
Mr. Alvarez told Mayor Stack that the owner of the property
where his business was located on Bergenline Avenue had
raised the rent from $2100 to $3800 per month. He told the
Mayor he was unable to remain in business paying this much
rent. Fortunately, he found a suitable property for sale
located on Central Avenue and 25th street, only two blocks
from his current location. This was within walking distance
of ninety percent of his customers. Mr. Alvarez testified he
emphasized to the Mayor this was a larger one-story
standalone structure with "good . . . ventilation."
Alvarez testified that the Mayor told him this "was not
his decision. It was up to the . . . Zoning Board members,
but that he had no objections." According to Mr.
Alvarez, the Mayor asked Velazquez for his opinion on the
matter. In response, Velazquez allegedly characterized the
project as a "magnificent idea" because the
building was a corner property, with good ventilation, and
"no apartments above." Mr. Alvarez testified that
he left the Mayor's office "with the feeling that I
have his blessing, and with the confidence that we could go
out and ask for the loan to buy the property." The
appellate record includes a printed copy of an email Mrs.
Alvarez sent to Mayor Stack dated March 6, 2015,
memorializing what she claims was discussed at the meeting
the previous day. The Alvarezes formed Central 25, LLC to
hold the title of the property and listed themselves as the
only principals. They closed title on June 18, 2015.
September 4, 2015, Central 25, LLC submitted an application
to the Board for preliminary and final site plan approval,
which required a number of bulk variances and a use variance
to operate two retail uses: (1) a fish market; and (2) a live
poultry market. The application was originally scheduled to
be heard on October 15, 2015. At plaintiff's request, the
hearing was adjourned to November 12, 2015, to accommodate
its planner's scheduling conflict. According to
plaintiff's counsel, on that same day, the Board's
attorney recused himself "presumably because his family
owns the building where [the Alvarezes'] existing poultry
market is located."
counsel apprised the Board that on November 7, 2015, the
Alvarezes invited area residents to attend a neighborhood
meeting at the Central Avenue property "to address
concerns that they may have." Counsel claimed that at
this gathering, "one of our client's customers
produced two letters, over Mayor Stack's signature,
[written] in both Spanish and English, which had been slipped
under the doorway of her home on official Union City
stationery." The letters were marked as exhibits at the
Board hearing and are part of the appellate record.
letters are not dated; they are written on paper embossed
with the seal of the City of Union City, identify an
affiliation with the Department of Public Safety, and list
the City Hall as its address. "Brian P. Stack,
Mayor" is printed on the top left corner of the letter;
the right corner lists the Mayor's Office telephone and
fax numbers. The content of the letter is formatted as a
flyer; it states the following message written in large
capital letters, using fonts of different sizes. We recite
the content of the flyer verbatim:
Read Correction to previous flyer!
IN THE AREA OF 25TH STREET & CENTRAL AVENUE
Friend, I am writing this letter to inform you that I am
personally not in favor of the live poultry market that is
proposed for 25th Street and Central Avenue. This is not
something I believe would benefit or improve your
neighborhood. I know you see, first hand, how hard and how
diligent the Commissioners and I are working to improve your
neighborhood and the City.
ask is if you can attend the meeting on November 12th at 6:00
PM at City Hall - 2nd Floor at 3715 Palisade Avenue. It is
important to voice your opinion and concerns. I do not have a
vote on the board that will hear this proposal so it is
important for you to let your voice be heard.
you for your dedication to your neighborhood the love we
share for Union City (sic). As always, call me anytime - 7
days a week - if I can help. It is an honor to serve as your
friend, Brian P. Stack
[contains a telephone number.]
a citation to the appendix, plaintiff's counsel states that on
November 17, 2015, he received a letter from Board Secretary
Carlos Vallejo advising him that the location of the Board
meeting to hear plaintiff's application had been changed
to Robert Waters Elementary School, located at 2800 Summit
Avenue. The hearing date was also changed to December 10,
2015. Vallejo directed plaintiff's counsel to send notice
of this new date and location, as required by N.J.S.A.
counsel marked as an exhibit before the Board an additional
undated flyer sent from Mayor Stack on official City
stationery, addressed to the "RESIDENTS IN THE AREA OF
25TH STREET & CENTRAL AVENUE," in which the Mayor
reaffirmed his condemnation of plaintiff's application.
The Mayor also exhorted the area residents "to attend
the meeting on December 10th at 6:00 PM at Robert Waters
Elementary School . . . to voice your opinion and
Board's Vice Chairman Victor Grullon made the following
comments concerning the Mayor's flyers:
I just want to clarify for the members of the Board that we
don't - - we don't consider any letter of anybody
that is not present in the - - in the audience here, to
If you have a letter, and you want to - - for that letter to
stay in the record, that person has to be present.
With that said, we don't consider any letter that you
have, or any propaganda. It's probably an opinion of a
resident of Union City, but we don't consider that as
anything that will guide our decisions here.
response to Vice-Chairman Grullon's statement,
plaintiff's counsel noted that "the Mayor and
Commissioners appoint each of the members of the Zoning
Board." This prompted the following exchange by the
BOARD ATTORNEY: Counsel? Counsel? Counsel? This is an
independent body. Client just testified that he knew that
this is an independent body . . . that has to make the