Aldom v. Borough of Roseland, A--374

• Decision Date: 27 November 1956
• Docket Number: No. A--374,A--374
• Citation: 42 N.J.Super. 495,127 A.2d 190
• Parties: Robert S. ALDOM et al., Plaintiffs-Appellants, v. BOROUGH OF ROSELAND, a municipal corporation, John Baker, Mayor, et al., Defendants-Respondents. . Appellate Division
• Court: New Jersey Superior Court — Appellate Division

Page 495

42 N.J.Super. 495

127 A.2d 190

Robert S. ALDOM et al., Plaintiffs-Appellants, v. BOROUGH OF ROSELAND, a municipal corporation, John Baker Mayor, et al., Defendants-Respondents.

No. A--374.

Superior Court of New Jersey Appellate Division.

Argued Oct. 29, 1956.

Decided Nov. 27, 1956.

Roy J. Grimley, Ridgewood, for appellants.

Fred G. Stickel, III, Newark, for respondents Borough of Roseland and others (Stickel & Stickel, Newark, attorneys).

Everett B. Smith, Newark, for respondents Henry Becker & Son Inc., Farms Inc., Henry E. Becker and others (Walter G. Brandley, Caldwell, attorney).

Milton Bruck, North Arlington, for respondents Jennie Rubenstein and others (Bruck & Bigel, North Arlington, attorneys).

Before Judges CLAPP, JAYNE and FRANCIS.

The opinion of the court was delivered by

FRANCIS, J.A.D.

This appeal concerns the validity of an ordinance amending the zoning ordinance of the Borough of Roseland. A number of citizens and taxpayers initiated the challenge by procedure in lieu of prerogative writ. The Law Division sustained the municipal action.

Roseland is a small suburban community in northwest Essex County, of about 2,300 acres and with a population of about 2,200 persons. It is conceded in respondents' brief that Henry Becker & Son, Inc. (of which Henry E. Becker has majority stock ownership) owns about 1,100 of these acres.

On May 13, 1952 the borough adopted a zoning ordinance which established five use districts: Residence No. 1, Residence No. 2, Residence No. 3, Retail Business and Light Industrial. The Light Industrial zone consisted of 275 acres, of which about 100 acres have not yet been put to that use. That this remaining portion is suitable and entirely adaptable to the purpose is not questioned. The Becker interests own 90 of these unused acres and over half of the remaining vacant land.

Prior to the change in the ordinance which gave rise to this litigation, Henry Becker & Son, Inc., requested a rezoning of five of its acres to industrial use. The planning board declined to approve it on three occasions. On appeal following the last attempt the council, apparently largely upon advice of counsel that it would be considered spot zoning, sustained the board but (according to the minutes) referred back to the board the question of the suitability of zoning the 'general location for residential use * * * with the recommendation of the Mayor and Council that the entire area be rezoned for industrial use.' The formal resolution dated October 12, 1954, was not as strongly worded. It resolved that the board 'seriously consider rezoning the entire area of similarly situated property in this general location from residential to industrial use.'

On October 19 the planning board met and discussed the resolution. The minutes indicate that Councilmen Hilton and Leonard 'were present and joined in informal discussion of the question.'

On October 29, after further consideration the board decided to request the council 'to more fully define the area in which they wish a reconsideration of the zoning.' Upon receipt of the request, a meeting of the council was had November 9, at which time Councilman Hilton moved that an executive meeting be held on November 16 and that 'Mr. Becker be invited to attend, in order to get clarification on this property involved * * * and also to have Mr. Becker present any further plans on rezoning that he may have in mind in the Borough * * *.'

At the council session of November 16 the mayor explained to Mr. Henry ('Gene') Becker why he was asked to attend. Becker said he 'was reluctant' to seek rezoning for more than the five acres involved in the application which had been rejected as spot zoning 'because he doesn't need it.' But he thought 'the Borough should do what they see fit to get away from spot zoning' and he would offer 'no objection to any additional rezoning in the area.' Then he outlined the further changes in zoning he had 'in mind for the Borough.'

The planning board convened on December 7 and took up the matter. At this time, according to the minutes, 'a marked blue print of the present zoning maps indicated further areas of Mr. Becker's property that he would like to see rezoned.' After studying 'Mr. Becker's map' some views were expressed regarding the suggested changes, but it was decided that the 'extended proposals' should be discussed at a public hearing to be held on January 4, 1955.

Following this public hearing the board recommended the additions to the industrial zone which were subsequently adopted by the council through the amendatory ordinance now under attack. All of the land rezoned except for approximately ten acres is owned by the Becker interests. Concurrently with the recommendation the board unanimously recorded 'its considered opinion that these are the ultimate extensions of the industrial zone.'

The amendatory ordinance incorporating the suggestions of the planning board was drawn by the borough attorney. It was submitted thereafter to the planning board and approved as required by N.J.S.A. 40:55--35.

At the public hearing conducted by the council on the amendatory ordinance a citizen suggested that since Councilman Leonard is an employee of Henry Becker & Son, Inc., it would be unethical for him to vote on the question and requested his abstention. A similar challenge was interposed by a member of the planning board in connection with the earlier appeal by Becker to which reference has been made. Leonard did not withdraw on either occasion. He voted in favor of adoption of the ordinance, although neither his vote (nor that of Councilman Hilton, to be discussed hereafter) was necessary for passage. See Pyatt v. Mayor and Council of Dunellen, 9 N.J. 548, 557, 89 A.2d 1 (1952).

The record reveals without dispute that Councilman Leonard is employed by Henry Becker & Son, Inc., as cashier in general charge of routes and office manager; he has worked for the company for 23 years.

Councilman Hilton is the owner of substantially all of the stock of Cocalico Poultry Farms, Inc., which packages eggs for the Becker company. The eggs are sold in containers which bear the legends 'Distributed by Henry Becker & Son, Inc.' and 'Packed by Cocalico Poultry Farms, Newark, New Jersey.'

On this appeal the amendatory ordinance is said to be void because of the participation of Leonard and Hilton in the municipal adoptive action, and because it represents an unlawful exercise of the zoning power of the borough. In our judgment, only the first ground need be considered.

A public office is a public trust. Borough councilmen, as fiduciaries and trustees of the public interest, must serve that interest with the highest fidelity. The law tolerates no mingling of self interest; it demands exclusive loyalty. Driscoll v. Burlington-Bristol Bridge Co., 8 N.J. 433, 474, 86 A.2d 201 (1952), certiorari denied Bell v. Driscoll, 344 U.S. 838 73 S.Ct. 34, 97 L.Ed. 652 (1952); Ames v. Board of Education of Montclair, 97 N.J.Eq. 60, 64, 127 A. 95 (Ch.1925). The theory is that a public officer assumes the same fiduciary relationship toward the citizens of his community as a trustee bears to his Cestui que trust. Pressey v. Township of Hillsborough, 37 N.J.Super. 486, 491, 117 A.2d 646 (App.Div.1955), certification denied 20 N.J. 303, 119 A.2d 789 (1956). They have the right to expect that in everything that appertains to their business or welfare, he will exercise his best judgment, unaffected and undiluted by anything which might inure to his own interest as an individual.

A quasi-judicial action of a municipal body is rendered voidable by the voting participation of a member thereof who is at the time subject to a direct or indirect private interest which is at variance with the impartial performance of his public duty.

This common law doctrine found its genesis in a necessary and compelling public policy. Ames v. Board of Education of Montclair, supra; People ex rel. Schenectady Illuminating Co. v. Board of Sup'rs, 166 App.Div.758, 151 N.Y.S. 1012 (App.Div.1915); Stroud v. Consumers' Water Co., 56 N.J.L. 422, 428, 28 A. 578 (Sup.Ct.1894). It has found its way into statutes which deal with specific matters. For example, by legislative fiat no member of a planning board is permitted 'to act on any matter in which he has, either directly or indirectly, any personal or financial interest.' N.J.S.A. 40:55--1.4; Zell v. Borough of Roseland, 42 N.J.Super. 75, 125 A.2d 890 (App.Div., Oct. 15, 1956); Hochberg v. Borough of Freehold, 40 N.J.Super. 276, 123 A.2d 46 (App.Div.1956). And a statute of similar import makes it a crime for a member of the governing body of a municipality to be directly or indirectly interested in any contract to furnish goods, chattels, supplies or property which are to be paid for by that body. N.J.S. 2A:135--8, N.J.S.A.

In this connection it is interesting to note that the Public Officers Law of New York established a code of ethics of public officers which proscribes 'any interest, financial or otherwise, direct or indirect, * * * which is in substantial conflict with the proper discharge of (their) duties in the public interest.' 46 McKinney's Consolidated Laws of N.Y. Ann. C. 47, § 74(2) (Supp.1956); 18 Id., c. 18 Executive Law, § 74 (Supp.1956).

In the present case, did the dual status of Mr. Leonard as borough councilman and employee of Becker, Inc., require him to disqualify himself and to refrain from joining in the deliberative action of the governing body in enacting the amendatory ordinance?

The interest which disqualifies is not necessarily a direct pecuniary one, nor is the amount of such an interest of paramount importance. It may be indirect; it is such an interest as is covered by the moral rule: no man can serve two masters whose interests conflict. Basically the question is whether the officer, by reason of a personal interest in the matter, is placed in a situation of temptation to...