Piscitelli v. City of Jr.

205 A.3d 183, 237 N.J. 333
CourtSupreme Court of New Jersey
DecidedMarch 27, 2019
DocketA-68 September Term 2017; 079900
StatusPublished
Cited by15 cases

This text of 205 A.3d 183 (Piscitelli v. City of Jr.) 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
Piscitelli v. City of Jr., 205 A.3d 183, 237 N.J. 333 (N.J. 2019).

Opinions

JUSTICE ALBIN delivered the opinion of the Court.

**338Public confidence in the integrity of our municipal planning and zoning boards requires that board members be free of conflicting interests that have the capacity to compromise their judgments. The maintenance of public trust in municipal government is the focus of statutory ethical codes, guided by common law principles, that bar planning and zoning board members from hearing cases when a personal interest "might reasonably be expected to impair [their] objectivity or independence of judgment." N.J.S.A. 40A:9-22.5(d) ; see also N.J.S.A. 40:55D-69 ; N.J.S.A. 40:55D-23(b). That ethical commandment is at the heart of the appeal before us.

This case involves an application made by members of the Conte family for site plan approval and variances to construct a gas station, car wash, and quick lube on three lots in the City of Garfield. The issue raised is whether any members of the Garfield Zoning Board of Adjustment had a disqualifying conflict of interest because of the involvement of certain Conte family members in the Zoning Board proceedings.

Two of the three lots to be developed were co-owned by the irrevocable trusts of Dr. Kenneth S. Conte (Dr. Kenneth) and his brother, Dr. Daniel P. Conte, Jr. (Dr. Daniel). Dr. Daniel personally owned the third lot. A trust benefitting Dr. Kenneth's nephew -- Dr. Daniel P. Conte, III (Dr. Daniel III) -- and his two nieces **339applied for development approvals. All three Contes practiced medicine in the adjacent medical building owned by Dr. Kenneth and Dr. Daniel.

Dr. Kenneth was a longtime member and the then-president of the Garfield Board of Education. The Board of Education approves, among other things, school employee appointments, contracts, and salaries. Five Zoning Board members were employed or had immediate family members employed by the Garfield Board of Education. To avoid the appearance of a conflict, the two lots owned by trusts bearing the names of Dr. Kenneth and his brother Dr. Daniel were transferred to the trust benefitting Dr. Kenneth's nieces and *187nephew. Despite the intra-family transfer of property, Dr. Kenneth made his presence known at the Zoning Board hearing and made clear his position favoring the project.

Vincent Piscitelli and his daughter Rose Mary objected to the development project. They claimed that a conflict of interest barred Zoning Board members who were employed or had immediate family members employed by the Board of Education from hearing the application because Dr. Kenneth, as Board of Education president, voted on school-district personnel matters. The Piscitellis also contended that any Zoning Board members who were patients or who had immediate family members who were patients of Dr. Kenneth, Dr. Daniel, or Dr. Daniel III also had a disqualifying conflict of interest.

No Zoning Board member disqualified himself or herself on conflict-of-interest grounds. The Board granted site plan approval and the requested variances for the Conte project. The Piscitellis filed a complaint in lieu of prerogative writs in Superior Court to vacate the Zoning Board approvals, alleging that the Board members' disqualifying conflicts of interest undermined the legality of the proceedings. The trial court upheld the Zoning Board approvals, finding that no conflicts of interest had impaired the Board members. The court also denied the Piscitellis' request to inquire whether any Zoning Board members or their family members were patients of Dr. Kenneth, his brother, or his nephew.

**340The Appellate Division affirmed.

We reverse and remand for further proceedings to decide whether any Zoning Board member had a disqualifying conflict of interest in hearing the application for site plan approval and variances in this case. The trial court must assess two separate bases for a potential conflict of interest. First, did Dr. Kenneth -- as president or a member of the Board of Education -- have the authority to vote on significant matters relating to the employment of Zoning Board members or their immediate family members? Second, did any Zoning Board members or an immediate family member have a meaningful patient-physician relationship with any of the three Conte doctors? If the answer to either of those questions is yes, then a conflict of interest mandated disqualification and the decision of the Zoning Board must be vacated. We do not possess sufficient information to answer those questions. We therefore reverse the judgment of the Appellate Division and remand to the trial court to determine whether any disqualifying conflicts impaired the Zoning Board proceedings. See N.J.S.A. 40A:9-22.5(d) ; N.J.S.A. 40:55D-69.

I.

A.

Dr. Kenneth S. Conte is a prominent citizen in the City of Garfield, where he has practiced medicine for many decades.1 He has served since 1980 as a member of the Garfield Board of Education, including as vice president and president. The Board of Education governs the school district and makes important employment decisions concerning school personnel. Additionally, Dr. Kenneth's brother, Dr. Daniel P. Conte, Jr., served for many years as medical inspector of the school district, including during the Zoning Board hearing. Five members of the Zoning Board *188**341were employed or had immediate family members employed by the Board of Education.

The Kenneth S. Conte Irrevocable Trust II (Dr. Kenneth Trust) and the Dr. Daniel P. Conte, Jr. Irrevocable Trust I (Dr. Daniel Trust) owned two of three lots on Midland Avenue in Garfield, the site of a proposed gas station, car wash, and quick lube. Dr. Daniel owned the third lot personally with his wife, who was then deceased. Immediately adjacent to the proposed construction site is the Ken-Dan Medical Center owned by Dr. Kenneth and Dr. Daniel. There, the two brothers practice medicine along with Dr. Kenneth's nephew, Dr. Daniel P. Conte, III. Also adjacent to the construction site are other lots owned by Conte family members.

Dr. Kenneth's nephew and two nieces (Dr. Daniel's children) -- Dr. Daniel III, Stacey A. Conte, and Jamie G. Kreshpane -- are the trustees and beneficiaries of the DSJ Family Trust.2 In March 2014, the DSJ Family Trust applied for site plan and variance approvals with the Garfield Zoning Board to construct a four-bay gas station, car wash, and quick lube on the three lots on Midland Avenue. At the time of the application, the DSJ Family Trust did not have an ownership interest in any of the three lots.3

Vincent and Rose Mary Piscitelli resided within 200 feet of the proposed construction site. They objected to the merits of the development. They also asserted that Zoning Board members who were employed or had immediate family members employed by the Board of Education should disqualify themselves on conflict-of-interest grounds. The Piscitellis argued that Dr.

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Cite This Page — Counsel Stack

Bluebook (online)
205 A.3d 183, 237 N.J. 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/piscitelli-v-city-of-jr-nj-2019.