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LLC v. Zoning Board of City of Union City

Superior Court of New Jersey, Appellate Division

July 24, 2019

CENTRAL 25, LLC, Plaintiff-Appellant,
v.
ZONING BOARD OF THE CITY OF UNION CITY, Defendant-Respondent.

          Argued November 28, 2018

          On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1246-16.

          Ronald 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).

          Before Judges Fuentes, Accurso and Vernoia.

          OPINION

          FUENTES, P.J.A.D.

         In 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.

         We derive the following facts from the record developed before the Board and the Law Division.

         I

         In 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 variance.

         According 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 Mayor."

         On March 5, 2015, Mr. Alvarez and his wife Niurka met with Mayor Brian P. Stack[1] 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."

         Mr. 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[2] 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.

         On 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."

         Plaintiff's 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.

         The 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:

         Please Read Correction to previous flyer![3]

         RESIDENTS IN THE AREA OF 25TH STREET & CENTRAL AVENUE

         Dear 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.

         All I 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.

         Thank 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 Mayor.

         Your friend, Brian P. Stack

         Mayor

         Cell: [contains a telephone number.]

         Without a citation to the appendix[4], 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. 40:55D-12.

         Plaintiff's counsel marked as an exhibit before the Board an additional undated flyer[5] 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 concerns."

         The 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 defend themselves.
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.

         In 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 attorneys:

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 ...

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