Richard Grabowsky v. Twp. of Montclair (073142)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Richard Grabowsky v. Township of Montclair (A-53-13) (073142)
Argued December 3, 2014 -- Decided June 15, 2015
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court considers whether two municipal officials had disqualifying conflicts of interest
when they voted on an application to amend a zoning ordinance.
The property at issue in this case is a single-parcel redevelopment area located at 63-65 Church Street in
Montclair (the “Church Street Lot”). The Unitarian Universalist Congregation Church of Montclair (Unitarian
Church), located at 67 Church Street, sits on a property adjacent to the western boundary of the Church Street Lot.
In March 2012, Fountain Square Development, LLC (Fountain Square) submitted a proposal for the
development of an eighty-eight-unit assisted living facility on the Church Street Lot. The proposal required three
amendments to the Township’s redevelopment plan. Fountain Square presented its proposal to the Township of
Montclair Council (Council), which consisted of Township Mayor Jerry Fried, Nick Lewis, and five other members.
In April, while Fountain Square’s proposed amendments to the redevelopment plan were pending before the
Planning Board of the Township of Montclair, the Council introduced Ordinance 0-12-28 (Ordinance), which
included the amendments. By letter to the Township Manager, the Planning Board endorsed two of the three
amendments and advised the Township that it lacked sufficient information to address the third amendment.
On May 1, 2012, at a public Council meeting presided over by Fried, Fountain Square presented its
proposal for an assisted living facility. Several residents stated concerns and objections to the proposal, and Lewis
suggested an amendment to the Ordinance. Lewis’s amendment was adopted by a vote of six to one, and Fried’s
subsequent motion to adopt the amended Ordinance passed, four to three. Fried, Lewis and two other Council
members voted in support of the amended Ordinance, and the remaining three Council members opposed it.
Plaintiff Richard Grabowsky -- “a citizen of Montclair and an owner and developer of numerous
commercial properties” in its downtown area -- filed a complaint in lieu of prerogative writs challenging the validity
of the Ordinance. Plaintiff claimed, among other challenges, that Fried had a direct personal interest in the
development that should have disqualified him from voting on the zoning issue, and that Fried and Lewis shared a
disqualifying indirect personal interest because of their membership in the Unitarian Church. Plaintiff sought a
preliminary injunction barring consideration or approval of development applications for the assisted living facility.
Although no party filed a motion for any form of dispositive relief, the trial court sua sponte granted summary
disposition, and dismissed plaintiff’s complaint with prejudice. The trial court observed that Fried’s remark (that his
mother might reside in the proposed facility) did not give rise to an interest different from the interest of other
members of the community, and that Fried’s and Lewis’s membership in the Unitarian Church did not warrant
disqualification based on the facts of this case.
On plaintiff’s appeal, an appellate panel concluded that the trial court’s summary disposition was
procedurally improper under Rule 4:67-1, but concurred with the court’s determination that the two Township
officials had no conflict of interest, and affirmed the trial court’s dismissal of plaintiff’s claims. The Court granted
plaintiff’s petition for certification. 217 N.J. 52 (2014).
HELD: Applying the statutory standards set forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163
(MLUL), and the Local Government Ethics Law, N.J.S.A. 40A:9-22.1 to -22.25 (LGEL), as well as established
common law authority, when a church or other organization owns property within 200 feet of a site that is the subject of
a zoning application, public officials who currently serve in substantive leadership positions in the organization, or who
will imminently assume such positions, are disqualified from voting on the application.
1
1. A court may grant summary disposition in only two settings, neither of which is presented by this case. First,
Rule 4:67-1 governs all actions in which the court is permitted by rule or by statute to proceed in a summary
manner, other than actions for the recovery of penalties which shall be brought pursuant to Rule 4:70. Second, Rule
4:67-1 applies in all other Superior Court actions other than matrimonial actions and actions in which unliquidated
monetary damages are sought, provided it appears to the court, on motion made pursuant to Rule 1:6-3 and on
notice, that it is likely that the matter may be completely disposed of in a summary manner. Summary disposition is
permitted by agreement of the court and the parties, evinced by a clear and unambiguous statement from the judge
and the unequivocal consent of the parties to a final resolution. Here, no party sought summary disposition, thus
there was no notice to the parties to the action as Rule 4:67-1 requires. Because the conflict-of-interest claims were
improvidently subjected to summary dismissal, they must be reinstated and considered on their merits. (pp. 15-18)
2. The challenge to the Ordinance presented in this appeal is based upon conflict-of-interest principles, and
implicates the provisions of two statutes that codified common law principles: the MLUL and the LGEL. The
MLUL governs Mayor Fried’s participation in the zoning dispute if, as alleged, he reviewed the Ordinance as a
member of the Planning Board. The MLUL provides that no member of a municipal planning board may “act on
any matter in which he has, either directly or indirectly, any personal or financial interest.” The LGEL is applicable
to Fried and Lewis as members of the Council, and to Fried if he served on the Planning Board. The LGEL
precludes government officials and employees from acting in any manner where “he, a member of his immediate
family, or a business organization in which he has an interest, has a direct or indirect financial or personal
involvement that might reasonably be expected to impair his objectivity or independence of judgment.” (pp. 18-23)
3. Against that backdrop, the Court turns to plaintiff’s conflict-of-interest allegations. If proven, plaintiff’s first
contention -- that Fried’s alleged comment disqualified him from voting on the Ordinance -- could constitute a
“[d]irect personal interest” benefiting “a blood relative . . . in a non-financial way, but [in] a matter of great
importance,” as this Court set forth in Wyzykowski v. Rizas, 132 N.J. 509, 525 (1993). In order for a public official
to be disqualified by an indirect personal interest in the zoning application, the interest must be distinct from that
shared by members of the general public. New Jersey courts have rarely recognized a conflict of interest arising
from a public employee’s alleged direct personal interest or personal involvement in a matter when there is no
prospect of financial advantage to the public official or his or her family or friends. On the limited record before the
Court, Fried’s alleged remark does not appear to give rise to such a conflict. If Fried’s nexus to the proposed
assisted living facility consists of nothing more than the possibility that the facility might someday house his mother,
that “interest” or “involvement” is unlikely to warrant his disqualification. On remand, the trial court should either
give the parties an opportunity to enter into a stipulation regarding the content and meaning of Fried’s alleged public
statement, or permit limited discovery as to Fried’s statement. (pp. 23-28)
4. Plaintiff’s second contention requires the Court to determine whether Fried’s and Lewis’s affiliations with the
Unitarian Church gave rise to disqualifying indirect personal interests. Based solely on the fact that the Unitarian
Church was neither an applicant nor an objector in the zoning dispute that gave rise to this appeal, the Appellate
Division determined that neither Fried nor Lewis had a disqualifying interest in the dispute. This Court does not
concur that this single factor resolves the question of whether the officials’ involvement with the Unitarian Church
gives rise to conflicts of interest. For purposes of determining whether a public official is disqualified from
participating in a zoning application because of his or her affiliation with a church or other organization, that
organization is deemed to have an interest in the application if it owns property within 200 feet of the property that
is the subject of the application. In this case, the Unitarian Church held an interest in the application to amend the
Ordinance by virtue of its status as the owner of property adjacent to the Church Street Lot. (pp. 28-31)
5. With that said, an organization’s interest must be imputed to public officials affiliated with the organization in
order for them to be disqualified from voting on an application. The Court declines to adopt a bright-line rule under
which the interest of a church or other organization is automatically imputed to all of its members. This appeal,
however, does not turn on the public officials’ status as ordinary members of their church. Here, plaintiff alleges
that Fried and Lewis had been selected to occupy positions of leadership in the Unitarian Church. If an organization
has an interest in a zoning application, an official who holds, or who will imminently hold, a position of substantive
leadership, has a disqualifying indirect personal interest and should refrain from deliberating and voting on the
zoning application. On remand, the trial court should either afford to the parties the opportunity to enter into a
stipulation regarding the Fried’s and Lewis’s leadership roles, or permit limited discovery on the issue. (pp. 31-34)
2
6. The longstanding conflict of interest rule reiterated in the Court’s decision should not deter public officials from
becoming involved in private organizations. In the rare circumstance in which public responsibilities and volunteer
commitments conflict in a land use dispute, the public official should refrain from involvement in the matter. With
careful attention to the potential for conflicts between public responsibilities and private affiliations, officials may
effectively assist organizations and preserve public confidence in the integrity of local government. (pp. 34-35)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED to the trial court
for proceedings consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion.
3
SUPREME COURT OF NEW JERSEY
A-53 September Term 2013
073142
RICHARD GRABOWSKY,
Plaintiff-Appellant,
v.
TOWNSHIP OF MONTCLAIR,
PLANNING BOARD OF THE
TOWNSHIP OF MONTCLAIR,
FOUNTAIN SQUARE DEVELOPMENT,
LLC, and MONTCLAIR KENSINGTON
URBAN RENEWAL, LLC,
Defendants-Respondents.
Argued December 3, 2014 – Decided June 15, 2015
On certification to the Superior Court,
Appellate Division.
Jonathan T. Guldin argued the cause for
appellant (Clark Guldin, attorneys).
Thomas J. Trautner, Jr., argued the cause
for respondents Montclair Kensington Urban
Renewal, LLC and Fountain Square
Development, LLC (Wolff & Samson,
attorneys).
Celia S. Bosco argued the cause for
respondent Township of Montclair (Genova
Burns, attorneys; Angelo J. Genova, of
counsel).
Arthur M. Neiss argued the cause for
respondent Planning Board of the Township of
Montclair (Beattie Padovano, attorneys).
JUSTICE PATTERSON delivered the opinion of the Court.
1
In this appeal, we review a trial court’s summary dismissal
of a complaint in lieu of prerogative writs and apply statutory
and common law standards to determine whether two municipal
officials had disqualifying conflicts of interest when they
voted on an application to amend a zoning ordinance.
Plaintiff Richard Grabowsky filed a complaint in lieu of
prerogative writs against the Township of Montclair. He
challenged the validity of an ordinance adopted by the Township
to permit the construction of an assisted living facility on a
site located next to the Unitarian Universalist Congregation
Church of Montclair (Unitarian Church). Plaintiff asserted that
a statement made by Township Mayor Jerry Fried, a member of the
Township Council and Planning Board, demonstrated that Fried had
a direct personal interest in the development and that he should
have been disqualified from voting on the zoning issue. He also
alleged that Fried and a second member of the Council, Nick
Lewis, shared a disqualifying indirect personal interest in the
development project because of their membership in the Unitarian
Church. The Township, its Planning Board and the developers
seeking the opportunity to build the assisted living facility
denied the existence of any conflict.
Plaintiff sought a preliminary injunction barring the
Township and Planning Board from considering or approving
development applications for the assisted living facility.
2
Although no party filed a motion for any form of dispositive
relief, the trial court sua sponte granted summary disposition,
and dismissed plaintiff’s complaint with prejudice. An
appellate panel concluded that the trial court’s summary
disposition was procedurally improper under Rule 4:67-1, but
concurred with the court’s determination that the two Township
officials had no conflict of interest, and affirmed the trial
court’s dismissal of plaintiff’s claims.
We agree with the Appellate Division that the trial court
improperly granted summary disposition on an application for a
preliminary injunction in which neither side sought dispositive
relief. We do not concur with the panel’s conclusion that, on
the limited record developed in the trial court, plaintiff’s
claim was properly dismissed because the Unitarian Church was
neither an applicant nor an objector in the redevelopment
application at issue. Applying the statutory standards set
forth in the Municipal Land Use Law, N.J.S.A. 40:55D-1 to -163
(MLUL), and the Local Government Ethics Law, N.J.S.A. 40A:9-22.1
to -22.25 (LGEL), as well as established common law authority,
we hold that when a church or other organization owns property
within 200 feet of a site that is the subject of a zoning
application, public officials who currently serve in substantive
leadership positions in the organization, or who will imminently
3
assume such positions, are disqualified from voting on the
application.
We reverse the Appellate Division’s judgment and remand
this matter to the trial court for limited discovery on Fried’s
alleged statement and the leadership roles assumed by Fried and
Lewis in the Unitarian Church, and for a determination on the
merits.
I.
The property at the center of this case is a 0.8 acre,
single-parcel redevelopment area1 located at 63-65 Church Street
in Montclair. Formerly used as a parking lot, the parcel is
known as the “Church Street Lot.” The Unitarian Church, located
at 67 Church Street, sits on a property adjacent to the western
boundary of the Church Street Lot.
Plaintiff alleges in his complaint that Fried and Lewis
were members of the Unitarian Church during the relevant period.
According to documents submitted to the trial court by
plaintiff, Fried and Lewis have not only been members of the
Unitarian Church, but have served in positions of leadership in
1 “‘Redevelopment area’ means an area which has been delineated a
‘redevelopment area’ or ‘area in need of redevelopment’ pursuant
to the ‘Local Redevelopment and Housing Law,’ [N.J.S.A. 40A:12A-
1 to -73] or an area in need of redevelopment delineated by a
resolution of a State entity in accordance with the provisions
of the enabling statute governing that State agency.” N.J.S.A.
40A:12A-65.
4
its organization. Fried’s website identified him as an active
member of the Church who has “delivered lay sermons . . . has
taught Religious Education, and has chaired several committees.”
Church records submitted by plaintiff indicate that Fried was
elected as a Trustee at Large on May 20, 2012. It appears, but
is not clear from the limited record, that Fried served as a
trustee prior to that date. These records also reflect that
Lewis was elected a member of the Board of Trustees on May 20,
2012, and that he chaired the Unitarian Church’s Membership
Committee in 2011 and 2012. Because no answer filed by any
defendant is part of the record, it is unclear whether
defendants admit or deny plaintiff’s allegations concerning the
respective roles of Fried and Lewis in the Unitarian Church.
On March 14, 2012, defendant-intervenor Fountain Square
Development, LLC (Fountain Square) submitted a proposal for the
development of an eighty-eight-unit assisted living facility on
the Church Street Lot. Fountain Square’s proposal required
three amendments to the Township’s redevelopment plan: first,
the addition of the proposed facility as a permitted use on the
Church Street Lot; second, an increase from five to six stories
in the maximum height permitted for a building on the property;
and third, a parking requirement of one-half space per
residential unit in the facility. Six days later, Fountain
Square presented its proposal to the Township of Montclair
5
Council (Council), which consisted of Fried, Lewis and five
other members. Pursuant to N.J.S.A. 40A:12A-7, the Council
referred the amendments to defendant Planning Board of the
Township of Montclair for its consideration and recommendation.
On April 3, 2012, while Fountain Square’s three proposed
amendments to the redevelopment plan were pending before the
Planning Board, the Council introduced Ordinance 0-12-28
(Ordinance), which included the amendments. Thereafter, the
Planning Board met to consider the proposed Ordinance. By
letter to the Township Manager, the Planning Board endorsed two
of the three amendments to the Ordinance: the addition of an
assisted living facility as a permitted use for the Church
Street Lot and the parking space allocation. The Planning Board
advised the Township Manager that it lacked sufficient
information to address the third amendment regarding the maximum
height allowed for a structure on the property. It specifically
recommended that the Council ascertain “the impact of the
increase in height on the adjoining church” and other properties
surrounding the Church Street Lot. Plaintiff alleges that
Fried, as a member of the Planning Board, voted in favor of the
Board’s recommendation to the Council.
According to plaintiff, at “one of the public hearings”
Fried “made a comment . . . that an assisted living facility
would benefit him because he could admit his mother to the
6
facility.” The record does not reveal the timing of this
alleged statement, and the parties disputed the nature and
content of the statement at oral argument before the trial
court.
On May 1, 2012, at a public Council meeting presided over
by Fried, Fountain Square presented its proposal for an assisted
living facility. Several residents stated concerns and
objections to the proposal. Lewis suggested an amendment to the
Ordinance limiting any assisted living facility to a height of
five stories, rather than the six stories proposed by Fountain
Square. A motion by another Council member to postpone adoption
of the Ordinance was defeated by a margin of four to three.
Lewis’s amendment limiting the building height to five stories
was adopted by a vote of six to one, and the Ordinance was
revised in accordance with that amendment. Fried then moved to
adopt the amended Ordinance, and his motion passed, four to
three. Fried, Lewis and two other Council members voted in
support of the amended Ordinance, and the remaining three
Council members opposed it.
Following the passage of the Ordinance, defendant-
intervenor Montclair Kensington Urban Renewal, LLC (Montclair
Kensington), an affiliate of Fountain Square, purchased the
Church Street Lot from its previous owner. On May 22, 2012,
Montclair Kensington was formally designated as the redeveloper
7
of the Church Street Lot. One month later, Montclair Kensington
submitted to the Planning Board an application for site plan
approval to construct the proposed assisted living facility.
II.
This action commenced with the filing of a complaint in
lieu of prerogative writs by plaintiff, described in the
complaint as “a citizen of Montclair and an owner and developer
of numerous commercial properties” in its downtown area.
Plaintiff initially sued only the Township, but later amended
his complaint to name the Planning Board as a defendant.
Plaintiff challenged the validity of the Ordinance on two
grounds. First, he claimed that the Ordinance was invalid
because it was inconsistent with the Township’s Master Plan for
redevelopment, and the procedures followed by the Council in
adopting the amendments to that plan had therefore violated
N.J.S.A. 40A:12A-7 and N.J.S.A. 40:49-2. Second, plaintiff
claimed that Fried had a direct personal interest because of his
alleged statement about his mother, and that Fried and Lewis had
an indirect personal interest in the approval of the Ordinance
due to their membership in the adjacent Unitarian Church. He
suggested that Fried and Lewis were motivated to vote for the
Ordinance because assisted living residents could be added to
the Unitarian Church’s membership rolls, thus improving its
financial condition. He also claimed that Fried and Lewis hoped
8
to arrange free parking for church members in the assisted
living lot.
Before the trial court, plaintiff sought a declaration that
the Ordinance was invalid and void. He also asked the trial
court to enjoin the Planning Board from considering or approving
Montclair Kensington’s application for preliminary and final
site plan approval, and the Township and Planning Board from
considering or approving any further applications by Montclair
Kensington, or any other person or entity, for the redevelopment
of the Church Street Lot.
After the parties agreed to delay any consideration or
approval of the site plan application pending the trial court’s
decision on plaintiff’s application for a preliminary
injunction, the trial court entered an order to show cause with
temporary restraints. No party moved for dismissal of the
complaint, for summary judgment, or for summary disposition.
The trial court then held a hearing. It initially
considered and granted the application of Montclair Kensington
and Fountain Square for leave to intervene pursuant to Rule
4:33-1. The court then turned to plaintiff’s application for a
preliminary injunction. As plaintiff’s counsel addressed the
“reasonable probability of success on the merits” prong of the
preliminary injunction standard set forth in Crowe v. De Gioia,
9
90 N.J. 126, 132-34 (1982), he referred to the showing necessary
for summary judgment:
[W]e have definitely shown a reasonable
probability of success on merits. And I
submit showing –- entitling us to summary
judgment. And I believe, moving forward,
regardless of the [c]ourt’s ruling today,
there’s really minimal discovery, based upon
the law that we’ve cited with respect to
conflict of interest.
Plaintiff did not, however, seek any relief other than a
preliminary injunction, or represent to the trial court that the
entire case could be decided in a summary proceeding. Instead,
he argued that because Fried and Lewis were not only members but
also officials of the Unitarian Church, and Fried had publicly
suggested that his mother might move into the proposed facility,
the record supported a finding that both officials had a
conflict of interest. Plaintiff argued that he had shown not
only a reasonable likelihood of success on the merits, but had
made a showing on all of the preliminary injunction factors set
forth in Crowe, supra, 90 N.J. at 132-34. Defendants and
intervenors argued that no such showing had been made and urged
the trial court to reject a rule that public officials are
disqualified from participation in a zoning board or planning
board matter simply because they are members of a church that is
located close to the disputed property.
10
The trial court ruled that “[c]ontrary to the assertions of
all the parties here,” the case could be resolved in a summary
manner and that plaintiff’s complaint should be dismissed.2 The
court rejected plaintiff’s contention that the amendments
contravened the Township’s redevelopment plan and that the
Township had violated N.J.S.A. 40A:12A-7 and N.J.S.A. 40:49-2.
With respect to the alleged conflicts of interest, the trial
court observed that Fried’s alleged remark about his mother’s
potential residence in the assisted living facility did not give
rise to any interest different from the interest of other
members of the community. It held that the membership of Fried
and Lewis in the Unitarian Church, “no matter how involved it
may be,” did not warrant disqualification. The trial court
noted that while there may be circumstances in which a council
member’s involvement in a church with an interest in a zoning
application compels disqualification, the facts of this case did
not support such a remedy. It denied plaintiff’s application
for a preliminary injunction and entered an order dismissing
plaintiff’s complaint with prejudice.
Plaintiff appealed the trial court’s judgment. An
appellate panel concluded that the trial court had improperly
2 The trial court did not cite Rule 4:67-1 in either its oral
opinion or its subsequent memorandum decision, but its reference
to “deal[ing] with [the case] in a summary manner” suggests that
it dismissed plaintiff’s complaint pursuant to that rule.
11
invoked the summary disposition procedure, noting that Rule
4:67-1 applies only when a party files a motion for summary
disposition or when the parties consent to a determination under
that rule.
The panel held, however, that the trial court’s procedural
error did not generate an unjust result. It agreed with the
trial court that the Ordinance was not invalid as a deviation
from the Township’s Master Plan. The panel also concluded that
the participation of Fried and Lewis in the Council’s vote on
the Ordinance did not give rise to a conflict of interest. The
panel held that no disqualifying interest in the zoning
application was raised by Fried’s comment about his mother’s
possible residence in the assisted living facility. It viewed
the fact that the Unitarian Church was neither an applicant nor
an objector to be fatal to plaintiff’s claim that the council
members’ church involvement raised a conflict of interest. The
panel was unpersuaded by plaintiff’s argument that Fried and
Lewis had an indirect interest because the Unitarian Church
might financially benefit from the opening of an assisted living
facility next door. Accordingly, it affirmed the trial court’s
dismissal of plaintiff’s complaint.
12
We granted plaintiff’s petition for certification. 217
N.J. 52 (2014).3
III.
Plaintiff challenges the appellate panel’s conclusion that
the trial court’s summary disposition did not create an unjust
result. He contends that the Appellate Division misread the
record when it concluded that there were no factual disputes
barring summary disposition. Plaintiff argues that he was
entitled to discovery regarding the alleged conflicts of
interest raised by the participation of Fried and Lewis in the
Council’s vote on the Ordinance. He contends that the Appellate
Division improperly recognized a bright-line rule that a public
official’s affiliation with a church or other organization can
never give rise to a conflict of interest with respect to zoning
issues unless the organization is itself an applicant or
objector. Plaintiff further asserts that Fried and Lewis had a
“direct or indirect financial or personal involvement”
3 In his petition, plaintiff raised two issues: whether the
Appellate Division erred in finding the trial court’s procedural
error in summarily dismissing the case to be harmless; and
whether the Appellate Division erred in applying the conflict of
law principles of the MLUL and LGEL. Plaintiff did not
challenge the Appellate Division’s rejection of his claim that
the Ordinance deviated from the Township’s Master Plan and that
the Township’s procedures in adopting the Ordinance violated
N.J.S.A. 40A:12A-7 and N.J.S.A. 40:49-2. Accordingly, those
issues are not before the Court.
13
recognized as disqualifying by the LGEL, N.J.S.A. 40A:9-22.5(d),
and that the Ordinance is therefore invalid.
The Township urges the Court to affirm the judgment of the
Appellate Division. It contends that plaintiff conceded the
absence of genuine factual disputes in his argument to the trial
court and that the trial court properly resolved the case by
summary disposition. The Township asserts that a public
official’s membership in a church or organization generates a
conflict of interest only when the church or organization is an
applicant or objector in a dispute over a proposed development.
It dismisses as speculative plaintiff’s allegation that Fried’s
comments concerning his mother revealed a disqualifying personal
interest and that the Unitarian Church anticipated financial
benefits from the proposed assisted living facility.
The Planning Board argues that Fried’s involvement in its
review of the Ordinance was immaterial because the Planning
Board’s role in the adoption of the Ordinance was only advisory
to the Township. It contends that the Township’s action, not
that of the Planning Board, should be the focus of the Court’s
inquiry because the Township has the exclusive authority to
enact a zoning ordinance.
Montclair Kensington and Fountain Square characterize
plaintiff’s claim as a rival real estate developer’s tactic to
delay and disrupt construction of an essential assisted living
14
facility. They argue that plaintiff invited the trial court to
summarily decide the case and that the court properly dismissed
plaintiff’s claims. Montclair Kensington and Fountain Square
assert that plaintiff’s position contravenes case law holding
that conflict-of-interest determinations are fact-specific, and
that plaintiff seeks an impractical rule that would
automatically disqualify public officials who are members of
organizations from participating in many land-use applications.
They argue that the prospect of the proposed assisted living
facility enhancing the Unitarian Church’s membership or finances
was too speculative to support the disqualification of Fried and
Lewis from the Township’s review of the Ordinance.
IV.
A.
We concur with the Appellate Division that the trial court
improperly dismissed this action pursuant to Rule 4:67-1.
Rule 4:67-1 is designed “to accomplish the salutary purpose
of swiftly and effectively disposing of matters which lend
themselves to summary treatment while at the same time giving
the defendant an opportunity to be heard at the time plaintiff
makes his application on the question of whether or not summary
disposition is appropriate.” Pressler & Verniero, Current N.J.
Court Rules, comment 1 on R. 4:67-1 (2015). In such summary
actions, “findings of fact must be made, and a party is not
15
entitled to favorable inferences such as are afforded to the
respondent on a summary judgment motion for purposes of
defeating the motion.” Ibid. (citing O’Connell v. New Jersey
Mfrs. Ins. Co., 306 N.J. Super. 166, 172 (App. Div. 1997),
appeal dismissed, 157 N.J. 537 (1998)).
A court may grant summary disposition in only two settings,
neither of which is presented by this case. First, Rule 4:67-1
governs “all actions in which the court is permitted by rule or
by statute to proceed in a summary manner, other than actions
for the recovery of penalties which shall be brought pursuant to
R. 4:70[.]” See, e.g., N.J.S.A. 47:1A-6 (actions instituted
under the New Jersey Open Public Records Act); State Farm Indem.
Co. v. Nat’l Liab. & Fire Ins. Co., 439 N.J. Super. 532, 538-39
(App. Div. 2015) (holding Legislature intended to permit summary
action to compel arbitration under N.J.S.A. 39:6A-11). Second,
in all other Superior Court actions “other than matrimonial
actions and actions in which unliquidated monetary damages are
sought,” Rule 4:67-1 applies “provided it appears to the court,
on motion made pursuant to R. 1:6-3 and on notice to the other
parties to the action not in default, that it is likely that the
matter may be completely disposed of in a summary manner.” R.
4:67-1. Summary disposition is permitted by agreement of the
court and the parties, evinced by “a clear and unambiguous
statement from the judge and the unequivocal consent of the
16
parties to a final resolution . . . .” Waste Mgmt. of N.J.,
Inc. v. Union Cnty. Utils. Auth., 399 N.J. Super. 508, 518-19
(App. Div. 2008). Those procedural requirements serve important
objectives: to permit the presentation of a factual record and
legal arguments to the court, and to ensure that the parties
anticipate and address the standard for summary disposition
before the court decides whether to grant that relief.
In this case, the trial court erred when it sua sponte
dismissed the complaint with prejudice. Because no party sought
summary disposition, there was no “notice to the other parties
to the action not in default,” as the Rule requires. R. 4:67-1.
The only motions before the trial court were defendants’ motions
to intervene and plaintiff’s motion for a preliminary
injunction, governed by the Crowe standard. Consequently, the
parties had no opportunity to prepare a factual record to
support or oppose summary disposition or argue the standard of
Rule 4:67-1. Indeed, the trial court acknowledged that its
decision to summarily dismiss the case was contrary to the
assertions of all parties.
Notwithstanding his counsel’s reference to the factual
record in the context of his argument on the “reasonable
likelihood of success on the merits” prong of Crowe, supra, 90
N.J. at 132-34, plaintiff did not consent to the resolution
under Rule 4:67-1. The trial court’s summary disposition in
17
defendants’ favor denied plaintiff a fair opportunity to pursue
his claims.
The Appellate Division acknowledged plaintiff’s argument
that he was entitled to further discovery and a hearing on the
merits and agreed that summary disposition under Rule 4:67-1 was
improper. Rather than remedy the trial court’s error, the panel
granted the same procedurally improper relief on different
grounds. Because they were improvidently subjected to summary
dismissal, plaintiff’s conflict-of-interest claims must be
reinstated and considered on their merits.
B.
As a general principle, a municipal ordinance is afforded a
presumption of validity, and the action of a board will not be
overturned unless it is found to be arbitrary and capricious or
unreasonable, with the burden of proof placed on the plaintiff
challenging the action. Price v. Himeji, LLC, 214 N.J. 263, 284
(2013) (citing Kramer v. Bd. of Adjustment, 45 N.J. 268, 296
(1965)); Toll Bros., Inc. v. Burlington Cnty. Bd. of Chosen
Freeholders, 194 N.J. 223, 256 (2008). The action of a planning
board, affirmed by a governing body such as the Council in this
case, is subject to judicial review. N.J.S.A. 40:55D-17(h);
Wyzykowski v. Rizas, 132 N.J. 509, 512-17, 522 (1993).
The challenge to the municipal ordinance here is based upon
conflict–of-interest principles, which derive from one of the
18
guarantees afforded by the common law: “the entitlement to a
fair and impartial tribunal.” Wyzykowski, supra, 132 N.J. at
522. Under our common law, “[a] public official is disqualified
from participating in judicial or quasi-judicial proceedings in
which the official has a conflicting interest that may interfere
with the impartial performance of his duties as a member of the
public body.’” Id. at 523 (alteration in original) (quoting
Scotch Plains-Fanwood Bd. of Educ. v. Syvertsen, 251 N.J. Super.
566, 568 (App. Div. 1991)).
Plaintiff’s challenge to the Ordinance on conflict-of-
interest grounds implicates the provisions of two statutes that
codified common law principles. The MLUL, which addresses,
among other subjects, the composition and deliberations of
planning boards, governs Fried’s participation in the zoning
dispute if, as alleged, he reviewed the Ordinance as a member of
the Township Planning Board.4 That statute provides that no
member of a municipal planning board may “act on any matter in
which he has, either directly or indirectly, any personal or
financial interest.” N.J.S.A. 40:55D-23(b).
4 Although the record with respect to Fried’s service on the
Planning Board is limited to plaintiff’s allegation, he may have
served on that Board by virtue of his office as Mayor. The MLUL
provides that the first of four classes of planning board
members consists of “the mayor or the mayor’s designee.”
N.J.S.A. 40:55D-23(a). “The term of the member composing Class
I shall correspond to the mayor’s . . . official tenure . . . .”
N.J.S.A. 40:55D-23(b).
19
The second pertinent statute, the LGEL, is applicable to
Fried and Lewis as members of the Council, and to Fried if he
served on the Planning Board. See N.J.S.A. 40A:9-22.3(e)-(h), -
22.5(d). In enacting the LGEL, the Legislature declared:
a. Public office and employment are a public
trust;
b. The vitality and stability of
representative democracy depend upon the
public’s confidence in the integrity of
its elected and appointed
representatives;
c. Whenever the public perceives a conflict
between the private interests and the
public duties of a government officer or
employee, that confidence is imperiled;
d. Governments have the duty both to provide
their citizens with standards by which
they may determine whether public duties
are being faithfully performed, and to
apprise their officers and employees of
the behavior which is expected of them
while conducting their public duties[.]
[N.J.S.A. 40A:9-22.2.]
The LGEL’s objective is to make ethical standards in state
and local government “‘clear, consistent, uniform in their
application, and enforceable on a statewide basis.’”
Wyzykowski, supra, 132 N.J. at 531 (emphasis omitted) (quoting
N.J.S.A. 40A:9-22.2). Noting that “[w]henever the public
perceives a conflict between the private interests and the
public duties of a government officer or employee,” the public’s
confidence in the integrity of government is “imperiled,” the
20
Legislature recognized the need for standards by which it may be
determined “whether public duties are being faithfully
performed.” N.J.S.A. 40A:9-22.2(c)-(d).
To that end, the Legislature provided:
No local government officer or employee shall
act in his official capacity in any matter
where he, a member of his immediate family, or
a business organization in which he has an
interest, has a direct or indirect financial
or personal involvement that might reasonably
be expected to impair his objectivity or
independence of judgment.
[N.J.S.A. 40A:9-22.5(d).]5
In Wyzykowski, supra, this Court identified four settings
in which the case law mandates disqualification:
(1) “Direct pecuniary interests,” when an
official votes on a matter benefitting the
official’s own property or affording a direct
financial gain; (2) “Indirect pecuniary
interests,” where an official votes on a
matter that financially benefits one closely
tied to the official, such as an employer, or
family member; (3) “Direct personal interest,”
when an official votes on a matter that
benefits a blood relative or close friend in
5 The Legislature did not indicate whether the term “involvement”
in the LGEL is intended to have a broader reach than the term
“interest” used in the MLUL. See ibid.; see also Cox & Koenig,
New Jersey Zoning & Land Use Administration 88 (2015) (noting
that “it is unclear whether the use of the word ‘involvement’
instead of ‘interest’ bears significance”). We need not reach
the issue of whether there is a distinction between the terms
used in the two statutes because the public officials’ personal
“interest” that plaintiff alleges would, if proven, also
constitute their “personal involvement” in the matter.
Accordingly, for purposes of this opinion, the term “personal
interest” as used in the MLUL also denotes a “personal
involvement” under the LGEL.
21
a non-financial way, but in a matter of great
importance, as in the case of a councilman’s
mother being in the nursing home subject to
the zoning issue; and (4) “Indirect [p]ersonal
[i]nterest,” when an official votes on a
matter in which an individual’s judgment may
be affected because of membership in some
organization and a desire to help that
organization further its policies.
[132 N.J. at 525 (quoting Michael A. Pane,
“Conflict of Interest: Sometimes a Confusing
Maze, Part II,” New Jersey Municipalities,
March 1980, at 8, 9).]
A court’s determination “whether a particular interest is
sufficient to disqualify is necessarily a factual one and
depends upon the circumstances of the particular case.” Van
Itallie v. Borough of Franklin Lakes, 28 N.J. 258, 268 (1958)
(citing Aldom v. Borough of Roseland, 42 N.J. Super. 495, 503
(App. Div. 1956)). To determine whether there is a
disqualifying interest, a court need not ascertain whether a
public official has acted dishonestly or has sought to further a
personal or financial interest; the decisive factor is “whether
there is a potential for conflict.” Wyzykowski, supra, 132 N.J.
at 524 (citing Griggs v. Borough of Princeton, 33 N.J. 207, 219
(1960)). If there is a disqualifying conflict, an inquiry into
an official’s motive is unnecessary; “[i]f there is ‘interest,’
there is disqualification automatically, entirely without regard
to actual motive, as the purpose of the rule is prophylactic[.]”
22
McNamara v. Borough of Saddle River, 64 N.J. Super. 426, 429
(App. Div. 1960).
The ethics rules must be applied with caution, as “‘[l]ocal
governments would be seriously handicapped if every possible
interest, no matter how remote and speculative, would serve as a
disqualification of an official.’” Wyzykowski, supra, 132 N.J.
at 523 (quoting Van Itallie, supra, 28 N.J. at 269). It is
essential that municipal offices be filled by individuals who
are thoroughly familiar with local communities and concerns. It
is also imperative that local officials comply with the
Legislature’s direction and refrain from participating in a
determination that raises a conflict. Thus, the nature of an
official’s interest must be carefully evaluated based on the
circumstances of the specific case. Van Itallie, supra, 28 N.J.
at 268.
C.
With those principles in mind, we consider the first of
plaintiff’s two conflict-of-interest allegations: that Fried’s
alleged comment about the prospect of admitting his mother to
the planned assisted living facility disqualified him from
voting on the Ordinance. If proven, the conflict alleged could
fall within the third category recognized by the Court in
Wyzykowski: a “[d]irect personal interest” benefiting “a blood
relative . . . in a non-financial way, but [in] a matter of
23
great importance[.]” Wyzykowski, supra, 132 N.J. at 525; see
also N.J.S.A. 40A:9-22.5(d) (LGEL conflict provision); N.J.S.A.
40:55D-23(b) (MLUL conflict provision).
In order for a public official to be disqualified by a
direct personal interest in the zoning application, the interest
must be distinct from that shared by members of the general
public. See Wyzykowski, supra, 132 N.J. at 524 (citing Griggs,
supra, 33 N.J. at 207, 220-21). Our courts have rarely
recognized a conflict of interest arising from a public
employee’s alleged direct personal interest or personal
involvement in a matter when there is no prospect of financial
advantage to the public official or his or her family or
friends. For example, in Van Itallie, supra, this Court
dismissed as tenuous and speculative a conflict of interest
claim asserted against a councilman who stated, “in the charged
atmosphere of a public council meeting,” that he shared with his
colleagues “some purely selfish reasons” for voting in favor of
a proposed zoning ordinance. 28 N.J. at 271-72. The Court held
that the alleged source of the councilman’s conflict -- a
combination of personal and financial benefits that relatives of
the councilman could have gained by virtue of the revised zoning
-- were “entirely too remote to be considered as tending
improperly to influence the councilman’s official judgment.”
Id. at 269.
24
The Appellate Division found a disqualifying personal
interest in Barrett v. Union Township Committee, 230 N.J. Super.
195, 204 (App. Div. 1989). There, a councilman cast the
deciding vote in favor of an amendment to a zoning ordinance
that authorized construction of a continuing care facility on a
lot adjacent to, and owned by the operators of, the nursing home
in which his mother lived. Id. at 196-97. Discovery revealed
that the councilman was not responsible for the cost of his
mother’s care and that he therefore had no financial interest in
the application. Id. at 199-200. Relying on the language of
the predecessor statute to the MLUL, N.J.S.A. 40:55-1.4 (1974),
repealed by L. 1975, c. 291, the panel noted that no financial
stake was necessary in order for a conflict to arise if the
public official had a personal interest in the matter:
The statutory disqualification is markedly
broadly couched, extending to personal as well
as financial interest, “directly or
indirectly.” There is thus evidenced an
intent that the bar is not confined to
instances of possible material gain but that
it extends to any situation in which the
personal interest of a board member in the
“matter” before it, direct or indirect, may
have the capacity to exert an influence on his
action in the matter.
[Id. at 202 (emphasis omitted) (quoting Zell
v. Borough of Roseland, 42 N.J. Super. 75, 81
(App. Div. 1956)).]
The panel concluded that “[i]t would strain credulity to
conclude that [the councilman] did not have an interest in
25
seeing that his invalid mother was properly cared for in the
facility that was owned and operated by [the owners of his
mother’s nursing home].” Id. at 204. Because of the
councilman’s present, tangible interest in the proposed facility
that was important to his mother’s medical care, the panel held
that he should not have been involved in the matter, and
invalidated the ordinance. Id. at 200, 204-05.
Similarly, a Law Division judge recognized a disqualifying
personal interest arising from a councilman’s longstanding
opposition to the construction of a school. McNamara v. Borough
of Saddle River, 60 N.J. Super. 367, 369-74 (Law Div.), aff’d,
supra, 64 N.J. Super. at 431. Prior to taking office, the
councilman had brought a legal action to enjoin the operation of
the school, claiming that it reduced the value of his property
and diminished his enjoyment of his home. Id. at 371-73. After
taking office, the councilman voted in favor of the zoning
ordinance amendment that would have barred the same school from
expanding. Id. at 370-71. The court’s decision was not
premised on the councilman’s alleged financial interest in
limiting the growth of the school, but on his “adversary
interest in the school at the time he voted for [the amended
ordinance],” and on his “well developed and intense private
concern” that “could have impaired his capacity to act in the
interest of the citizens at large.” Id. at 376, 378.
26
On the limited record before the Court, Fried’s alleged
remark that his mother might benefit from the proposed assisted
living facility does not appear to give rise to a conflict of
interest comparable to those identified in Barrett and McNamara.
In contrast to the setting of Barrett, in which the official’s
mother was already a resident of the nursing home, there is no
evidence that Fried’s mother depended on the proposed developers
of the assisted living facility for her medical care. The
statement attributed to Fried -- a suggestion that his mother
might enter the assisted living facility in the future -- does
not distinguish him from any other member of the community who
is responsible for an elderly family member and would welcome a
local facility for that relative’s care. If Fried’s nexus to
the proposed assisted living facility consists of nothing more
than the possibility that the proposed facility might someday
house his mother, that “interest” or “involvement” is unlikely
to warrant his disqualification under the standards of the MLUL,
the LGEL or the common law. Such an interest is likely to be
found “entirely too remote” to influence the official’s conduct.
See Van Itallie, supra, 28 N.J. at 269.
The trial court, however, did not permit the development of
a record regarding plaintiff’s allegation that Fried’s comment
reveals a personal interest in the assisted living facility.
Accordingly, on remand, the trial court should give the parties
27
an opportunity to enter into a stipulation regarding the content
and meaning of Fried’s alleged public statement. If the parties
are unable to stipulate to the facts, the trial court should
permit limited discovery as to Fried’s statement about his
mother’s potential residence in the assisted living facility and
the background to that statement. With a record on this issue,
the court can then determine the merits of plaintiff’s claim.
D.
We also review a second conflict-of-interest issue raised
by plaintiff: whether Fried’s and Lewis’s affiliations with the
Unitarian Church gave rise to disqualifying indirect personal
interests. The Appellate Division’s dismissal of plaintiff’s
claim was premised solely on the fact that the Unitarian Church
was neither an applicant nor an objector in the zoning dispute
that gave rise to this appeal. Accordingly, the panel
determined that neither Fried nor Lewis had a disqualifying
interest in the zoning dispute.
Guided by longstanding conflict of interest case law and
statutory authority, we do not concur with the panel that this
single factor resolves the question of whether the officials’
involvement with the Unitarian Church gives rise to conflicts of
interest. An organization that is an applicant or objector in a
proceeding before a local board clearly has an interest in the
outcome of that proceeding. See, e.g., Sugarman v. Twp. of
28
Teaneck, 272 N.J. Super. 162, 166, 171-72 (App. Div.), certif.
denied, 137 N.J. 310 (1994); McVoy v. Bd. of Adjustment of
Montclair Twp., 213 N.J. Super. 109, 111, 113-16 (App. Div.
1986); Marlboro Manor, Inc. v. Bd. of Comm’rs, 187 N.J. Super.
359, 360-62 (App. Div. 1982); Zell, supra, 42 N.J. Super. at 81-
82. An organization’s direct participation in a zoning
application, however, is not the only measure of its interest in
the issue. Whether or not an organization chooses to actively
participate in a zoning application, it may have an interest in
the application by virtue of its proximity to the property in
dispute.
Recognizing that an application for the development of a
given parcel can affect the owners of nearby properties, the
Legislature included two notice provisions in the MLUL. See
N.J.S.A. 40:55D-12, -62.1; see also Twp. of Stafford v. Stafford
Twp. Zoning Bd. of Adjustment, 154 N.J. 62, 70 (1998) (noting
purpose of notice provisions “that the public has a chance to be
heard”). Accordingly, when a municipality proposes a
classification or boundary change to a district, N.J.S.A.
40:55D-62.1 mandates notice, at least ten days prior to the
hearing, to the owners of real property “within the district and
within the State within 200 feet in all directions of the
boundaries of the district” subject to the proposed
classification change or the proposed new boundaries of the
29
involved district. Similarly, N.J.S.A. 40:55D-12(b) requires
“notice of a hearing requiring public notice pursuant to
[N.J.S.A. 40:55D-12(a)]” to be “given to the owners of all real
property as shown on the current tax duplicates, located in the
State and within 200 feet in all directions of the property
which is the subject of such hearing[.]” The Legislature’s
notice requirement “is tantamount to a declaration of interest
in the zoning treatment of a particular property on the part of
those owning other property within 200 feet.” McNamara, supra,
64 N.J. Super. at 430.
The Legislature’s choice to compel notice to property
owners within a 200-foot radius provides an objective measure of
a neighboring property owner’s interest in a zoning dispute.
That clear standard is unaffected by political, financial or
strategic considerations that may prompt a church or other
organization interested in a zoning application to refrain from
active participation. If an official with a direct or indirect
interest in a property within the Legislature’s 200-foot radius
participates in a zoning decision, his or her participation may
determine the outcome of the dispute, obviating the need for the
property owner to formally take a position for or against the
application. We consider the 200-foot radius defined by the
MLUL to provide a reliable measure of an organization’s interest
30
in a zoning application, whether or not the organization is the
applicant or chooses to appear as an objector or a supporter.
Consistent with the statutory notice provisions, for
purposes of determining whether a public official is
disqualified from participating in a zoning application because
of his or her affiliation with a church or other organization,
that organization is deemed to have an interest in the
application if it owns property within 200 feet of the property
that is the subject of the application. In this case, by virtue
of the Unitarian Church’s status as the owner of property
adjacent to the Church Street Lot, it clearly held an interest
in the Fountain Square application to amend the Ordinance.
Our conclusion that the Unitarian Church held an interest
in Fountain Square’s zoning application, however, is only the
first step in the inquiry. In order for public officials
affiliated with a church or other organization to be
disqualified from voting on such an application, the
organization’s interest in that issue must be imputed to those
officials.
When the organization is directly involved in a land use
dispute as an applicant or objector, several courts have imputed
the organization’s interest to all of its members. See McVoy,
supra, 213 N.J. Super. at 111, 115-16 (holding that two planning
board members who were members of church seeking variance were
31
disqualified due to conflict of interest despite plaintiff’s
consent to their participation); Marlboro Manor, supra, 187 N.J.
Super. at 362-63 (holding that township councilmen who were
members of church opposing transfer of liquor license were
disqualified from voting on transfer application); Zell, supra,
42 N.J. Super. at 81-82 (holding that planning board member who
was member of church seeking zoning change was disqualified from
voting on church’s application).6
Consistent with the fact-specific analysis used in
conflict-of-interest questions, we decline to adopt a bright-
line rule under which the interest of a church or other
organization is automatically imputed to all of its members.
Although the interests of a church or similar organization in a
particular community will ordinarily be imputed to its members
who are public officials, there may be circumstances in which
automatic imputation of an organization’s interests to its
6 Such an imputed interest may not exist if the public official
is not currently a member of the organization or the potential
benefit to the organization is too attenuated. See Sugarman,
supra, 272 N.J. Super. at 167-71 (holding that affiliate member
of applicant congregation, who resigned from congregation to
avoid conflict of interest, was not disqualified from
participation as member of municipal board of adjustment in use-
variance application); Landau v. Twp. of Teaneck, 231 N.J.
Super. 586, 595-96 (Law Div. 1989) (declining to find conflict
of interest where councilman and congregation member voted to
approve sale of municipal lands to another congregation, despite
contention that sale would alleviate overcrowding in
councilman’s congregation).
32
members may be unwarranted and unjust. An individual’s
“membership” in an organization does not necessarily denote
active involvement in the group or awareness of the positions it
takes in a legal dispute. The question of whether an
organization’s interest extends to all of its members should be
determined on a case-by–case basis.
This appeal, however, does not turn on the public
officials’ status as ordinary members of their church.
Plaintiff alleges that when they voted on the Ordinance, Fried
and Lewis had been selected to occupy positions of leadership in
the Unitarian Church -- Fried as a past committee chair, Lewis
as a current committee chair, and both about to begin terms as
trustees. By virtue of his or her responsibility for the
organization’s governance, an official who holds, or who will
imminently hold, a position of substantive leadership in an
organization reasonably is understood to share its interest in
the outcome of a zoning dispute. If the organization has an
interest in a zoning application, such an official has a
disqualifying indirect personal interest and should refrain from
deliberating and voting on the zoning application.
On remand, the trial court should afford to the parties the
opportunity to enter into a stipulation regarding the nature and
timing of any leadership roles that were assumed, or were
expected imminently to be assumed, by Fried and Lewis at the
33
relevant time. If no such stipulation can be agreed upon, the
parties should be permitted limited discovery regarding the
responsibilities involved in any leadership roles assumed by
Fried and Lewis in the Unitarian Church and the timing of their
respective roles.7 On the basis of a fuller record, the trial
court may then determine whether either official occupied or was
about to occupy a leadership role that gave rise to a
disqualifying conflict under the MLUL, N.J.S.A. 40:55D-23(b),
the LGEL, N.J.S.A. 40A:9-22.5(d), or the common law.
V.
The longstanding conflict of interest rule reiterated in
this decision should not deter public officials from becoming
involved in private organizations. It applies only when a
public official serves in a substantive leadership role in an
organization that brings or opposes a zoning application, or
that is the owner of property within 200 feet of the property in
dispute. The rule should not discourage public officials from
working for religious institutions, community groups or other
organizations, many of which cannot provide critical services to
their communities without the time and talents of their
7 In a case involving an alleged conflict of interest between an
official’s public duties and his or her commitment to an
organization, a trial court should carefully limit discovery to
the precise issue to be decided, to avoid fishing expeditions
that may deter community volunteers from entering public
service.
34
volunteers. In the rare circumstance in which public
responsibilities and volunteer commitments conflict in a land
use dispute, there is a simple solution: the public official
should refrain from involvement in the matter. With careful
attention to the potential for conflicts between public
responsibilities and private affiliations, officials may
effectively assist organizations and preserve public confidence
in the integrity of local government.
VI.
The judgment of the Appellate Division is reversed, and the
matter is remanded to the trial court for further proceedings in
accordance with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, and SOLOMON; and JUDGE CUFF (temporarily assigned) join in
JUSTICE PATTERSON’s opinion.
35
SUPREME COURT OF NEW JERSEY
NO. A-53 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
RICHARD GRABOWSKY,
Plaintiff-Appellant,
v.
TOWNSHIP OF MONTCLAIR,
PLANNING BOARD OF THE
TOWNSHIP OF MONTCLAIR,
FOUNTAIN SQUARE DEVELOPMENT,
LLC, and MONTCLAIR KENSINGTON
URBAN RENEWAL, LLC,
Defendants-Respondents.
DECIDED June 15, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7