Kane Properties, LLC v. City of Hoboken, 214 N.J. 199 (2013). This opinion by Justice Hoens affirms, as modified, the decision of the Appellate Division in this municipal land use matter, reported at 423 N.J. Super. 49 (App. Div. 2011), and discussed here. Without rehashing the detailed facts described in my earlier post and in the Court’s opinion, there were two issues.
The first was whether the involvement of an attorney who had represented the applicant in proceedings seeking variances before the Hoboken Board of Adjustment and then, by the time the matter was appealed to the governing body pursuant to N.J.S.A. 40:55D-17(a), had become the Municipal Attorney and was therefore the attorney for the governing body, represented an improper conflict of interest. The attorney had announced that he would recuse himself, but he still participated in certain ways. The Appellate Division found that there was a conflict.
The Supreme Court agreed, holding that the “appearance of impropriety” standard, though no longer applicable to attorney conflicts in general, remains applicable to quasi-judicial bodies and to municipal attorneys. The Municipal Attorney “occupied a unique position of influence. Applying the appearance of impropriety standard in this dispute, as with applying it to judicial functions, is essential to maintaining public confidence in the integrity of the proceedings.” Under the appearance of impropriety test, the attorney’s “incomplete recusal” warranted vacation of the result before the governing body.
The second issue involved what was to happen next. The Appellate Division had ruled that the matter was to return to the City Council. Justice Hoens concluded, however, that the “taint of conflict” remained, and that the City Council was therefore not the appropriate body to act on remand.
The Court recognized, however, that City Council review of the Board of Adjustment’s action on the variances would be de novo, while Law Division review (if no appeal were taken to the governing body) would be more deferential, under the “arbitrary and capricious” standard. In these “unusual circumstances,” in order to preserve the de novo standard of review while still taking the matter away from the City Council, Justice Hoens announced a unique, case-specific resolution. The remand proceedings would occur in the Law Division, but under the de novo standard, with the City Council allowed to offer arguments or supplements that “bear upon its own ‘expertise and knowledge’ of the zoning scheme.” Moreover, though the Court had “utmost confidence” in the Law Division judge who originally heard the matter and found no conflict by virtue of the Municipal Attorney’s participation, a different Law Division judge would handle the remand.
This summary does not do complete justice to Justice Hoens’s usual thoroughness in describing the facts and applicable law. The full (and lengthy) opinion is well worth reading by anyone with an interest in issues of municipal land use and/or professional responsibility.