Paruszewski v. Township of Elsinboro

711 A.2d 273, 154 N.J. 45, 1998 N.J. LEXIS 450
CourtSupreme Court of New Jersey
DecidedMay 18, 1998
StatusPublished
Cited by26 cases

This text of 711 A.2d 273 (Paruszewski v. Township of Elsinboro) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Paruszewski v. Township of Elsinboro, 711 A.2d 273, 154 N.J. 45, 1998 N.J. LEXIS 450 (N.J. 1998).

Opinion

The opinion of the Court was delivered by

GARIBALDI, J.

■ This appeal presents the question of whether the governing body of a municipality may appear through its attorney before the municipal zoning board of adjustment to oppose a nonconforming use certification application. Specifically, we consider whether the governing body has standing to appear before the zoning board through its attorney and whether the appearance of the township attorney creates an impermissible conflict of interest.

I

The Paruszewski family owns a farm in Elsinboro Township, a portion of which had been used as an airfield on a limited basis. In November 1989, the Zoning Officer for Elsinboro Township directed Raymond Paruszewski, the owner of the farm and father of petitioner Joseph Paruszewski (“petitioner”), to cease using his property as an airstrip until he acquired the necessary variances and approvals. On June 27, 1991, petitioner filed applications for a landing area with the Federal Aviation Administration and for an aeronautical facility license with the New Jersey Department of Transportation-Division of Aeronautics (“DOA”). Petitioner also filed a conditional use application with the Elsinboro Township *49 Planning Board (“Planning Board”) because the DOA application required local approvals.

In October 1991, the Planning Board reviewed petitioner’s application, finding that although the Paruszewski farm was located in a zoning district that permitted basic utility airports as a conditional use, the applicable ordinance neither defined “basic utility airport” nor listed the requisite conditions that an applicant must satisfy in order to be granted a conditional use permit. The Planning Board referred the matter to the Township Committee, requesting that it “resolve this problem by adopting a zoning ordinance dealing specifically with basic utility airports and the conditions, if any, for approval of same.” In response, the Township Committee retained a professional planner and relied upon his opinion in deciding that the elimination of basic utility airports as a conditional use was in the public’s best interest. The Township Committee adopted Ordinance 42-1 to that effect. Consequently, the Planning Board denied petitioner’s application for a conditional use permit.

In February 1992, Paruszewski petitioned the DOA to reconsider his application for an aeronautical facility license. The DOA, in turn, referred the matter to the Office of Administrative Law for a full evidentiary hearing. On August 3,1994, the presiding Administrative Law Judge placed the case on the inactive list, allowing petitioner time to obtain a nonconforming use certification or a use variance from the Elsinboro Township Zoning Board of Adjustment (“Zoning Board” or “Board”). On August 19, 1994, petitioner filed an application with the Zoning Board for certification that use of the Paruszewski farm as an airfield was a pre-existing nonconforming use.

On September 6, 1994, in a closed session, the Township Committee, as the governing body of the municipality, decided to oppose petitioner’s application to the Zoning Board. To represent its interests, the Committee directed the Township Attorney, John Hoffman (“Hoffman”), to appear at the Zoning Board hearing. Hoffman’s task was to present evidence establishing that the use *50 of the Paruszewski farm as an airfield was not a previous nonconforming use, or alternatively, that it had been abandoned. The Township Committee’s position was based on the professional planner’s opinion that operating an airfield on the farm would be detrimental to the Township’s master plan and zoning scheme.

The Board held hearings on petitioner’s application on September 21 and October 19, 1994. At the initial hearing, the Zoning Board’s attorney described petitioner’s application; ensured that no voting member had a conflict of interest; introduced and explained the proposed role of Hoffman, the Township Attorney; and outlined the applicable law regarding nonconforming uses. Subsequently, Hoffman explained that he was appearing on behalf of the governing body and on behalf of those citizens who opposed petitioner’s application. However, there was no indication that he had actually been retained by any private citizens. Hoffman then examined witnesses and submitted oral and written arguments on behalf of the governing body in opposition to petitioner’s application. Petitioner did not object to the participation of Hoffman at the hearing. Following the testimony of petitioner, his father, and several of their neighbors, the Zoning Board concluded that the farm had been used as an airstrip only sporadically since the Paruszewski family acquired the land in 1950. Therefore, the use “did not rise to the level of [an] accessory use” and was “not a preexisting, non-conforming use.”

On December 27, 1994, petitioner filed a complaint in lieu of prerogative writs against the Township Committee, the Zoning Board, and the Township of Elsinboro. On April 16, 1996, the Law Division granted defendants’ motion for summary judgment, dismissing petitioner’s complaint with prejudice. The Appellate Division affirmed. 297 N.J.Super. 531, 688 A.2d 662 (1997). Relying on Township of Dover v. Board of Adjustment, 158 N.J.Super. 401, 386 A.2d 421 (App.Div.1978), and Zoning Bd. of Adjustment v. Datchko, 142 N.J.Super. 501, 362 A.2d 55 (App.Div.1976), the panel found that “a substantial impairment of the zoning plan,” which constituted an “arrogation of authority” would result *51 in a governing body having standing and the right to sue. 297 N.J.Super. at 541, 688 A.2d 662. The court reasoned that implicit in the Dover court’s recognition of the governing body’s right to sue the zoning board in some circumstances “is the governing body’s additional right to make an appropriate record before the zoning board.” Id. at 542, 688 A.2d 662. Therefore, the court held that the governing body acted “wholly within its rights in appearing before the zoning board to lay before that body its views with respect to the merits of plaintiffs application.” Id. at 543, 688 A.2d 662. In addition, the court held that Hoffman’s appearance did not present a reversible conflict of interest. Id. at 539, 688 A.2d 662.

This Court granted certification, 149 N.J. 406, 694 A.2d 192 (1997), limited to the issues arising out of the Township Attorney’s appearance before the Zoning Board in opposition to petitioner’s nonconforming use application. Like the trial court and Appellate Division below, we conclude that the governing body had standing to oppose petitioner’s nonconforming use certification application before the Zoning Board and that the appearance of the Township Attorney did not present a reversible conflict of interest. Thus, we affirm.

II

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Bluebook (online)
711 A.2d 273, 154 N.J. 45, 1998 N.J. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/paruszewski-v-township-of-elsinboro-nj-1998.