Aronowitz v. Planning Bd. of Tp. of Lakewood

• Decision Date: 03 April 1992
• Parties: Bernard ARONOWITZ, P.E., Gertrude Levine, Sol Levine and Edwin Salzman, Plaintiffs, v. PLANNING BOARD OF the TOWNSHIP OF LAKEWOOD and Airport Associates, Defendants.
• Court: New Jersey Superior Court

Page 347

257 N.J.Super. 347

608 A.2d 451

Bernard ARONOWITZ, P.E., Gertrude Levine, Sol Levine and Edwin Salzman, Plaintiffs, v. PLANNING BOARD OF the TOWNSHIP OF LAKEWOOD and Airport Associates, Defendants.

Superior Court of New Jersey, Law Division Ocean County.

Decided April 3, 1992.

H. Steven Berkowitz, Brick Town, for plaintiffs (Franklin & Berkowitz, attorneys).

Craig L. Wellerson, Forked River, for defendant Planning Bd. of Tp. of Lakewood (Dasti, Murphy & Wellerson, attorneys).

John R. Halleran, Middletown, for defendant Airport Associates (Giordano, Halleran & Ciesla, attorneys).

SERPENTELLI, A.J.S.C.

In this action in Lieu of Prerogative Writs, plaintiffs seek to overturn several approvals granted by the Lakewood Township Planning Board [hereinafter board] for the construction of a cogeneration facility. On June 18, 1991, the board gave the defendant, Airport Associates [hereinafter Airport]: (1) a one year extension of the statutory protective period under N.J.S.A 40:55D-52, (2) a one year extension of the site plan approval under Section 18-8.7 of Chapter 18 of the Lakewood Township Code, (3) a declaration that both the statutory protective period and the period provided in the approval validity section of the township code were tolled pursuant to N.J.S.A. 40:55D-21 for a period of one year and (4) an amended site plan approval for various changes to the original site plan approval which were required by virtue of other regulatory agency action. That relief was memorialized by formal resolutions adopted on July 16, 1991.

The plaintiffs filed this action on August 26, 1991. Following pretrial and cross-motions for summary judgment, the parties entered into a consent order which set aside the original approvals and remanded the case to the board for a de novo hearing.

At a meeting held on November 19, 1991, the board scheduled a special meeting for December 9, 1991 to reconsider Airport's application. At the conclusion of the December 9 meeting, the board again granted the same approvals mentioned earlier with the exception of the request for tolling under N.J.S.A. 40:55D-21 which Airport chose not to pursue on remand. On December 17, 1991, the board adopted memorializing resolutions.

On December 24, 1991, the court granted the plaintiffs' application to reopen the case. The plaintiffs now renew their attack on the extension decision and, in addition, assert both a violation of the Open Public Meetings Act regarding the December 9, 1991 meeting and a conflict of interest which allegedly tainted the remand hearings. The plaintiffs have not challenged the resolution approving the amended site plan. The court will address the outstanding issues in reverse order.

I. ALLEGED CONFLICT OF INTEREST

As noted, on November 19, 1991, the board met to consider Airport's request to schedule a special meeting for December 9, 1991 and to hire a new attorney to represent the board at the special meeting. The plaintiffs allege that board members Mayor Richard Work and Committeeman Jose Alonso improperly participated in the November 19 meeting.

Mayor Work is an employee of Jersey Central Power & Light Company which intends to purchase power from the cogeneration facility. Plaintiffs contend that the Mayor had been advised by the township attorney that the Mayor's participation in any proceeding before the governing body or the planning board could create an appearance of a conflict of interest because of his position with Jersey Central Power & Light Company. In addition, the plaintiffs assert that Mayor Work and Committeeman Alonso, as township committee members, signed an agreement with Airport in settlement of a prior lawsuit which, among other things, required the township committee not to oppose Airport's effort in obtaining any needed local approvals. The plaintiffs concede that Mayor Work and Committeeman Alonso recused themselves from the December 9 hearing, but argue that their participation in the November 19 meeting, which scheduled the December 9 session and led to the hiring of the special counsel, tainted the subsequent proceedings.

Plaintiffs' argument is attenuated at best. In the first place, the transcript of the November 19 hearing, for the most part, does not identify which board member was speaking. However, to the extent that the court can presume that certain comments were made by either Mayor Work or Committeeman Alonso, it appears that the statements were entirely informational and had no significant impact on the outcome of the meeting. In fact, the only action taken at the meeting was an agreement to hold another meeting and to authorize the chair of the board, together with one or two other members, to select the special attorney for the December 9 meeting. The board agreed not to hire the attorney who represented it in the previous proceeding before this court. However, no vote was taken concerning any specific replacement.

Whether the participation of Mayor Work or Committeeman Alonso in the November 19 meeting creates an appearance of impropriety which invalidates that and ensuing meetings depends on an analysis of the circumstances surrounding their involvement. In re Professional Ethics Opinion 452, 87 N.J. 45, 50, 432 A.2d 829 (1981). In this case, it is not enough to say that their presence alone creates a suspicion which equates to an impermissible taint. The appearance of impropriety "must be something more than a fanciful possibility." Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 129, 373 A.2d 372 (1977). Its existence and effect cannot be decided in a vacuum. In re Opinion 415, 81 N.J. 318, 325, 407 A.2d 1197 (1979). There must be some reasonable basis to reach the conclusion that the outcome of the hearings may have been compromised by their conduct. Id.

On the facts before the court, the most that can be said is that the two members of the governing body, in some way, participated in the discussion which established the special meeting date. Certainly, prudence dictated that they should not have participated in or been present at the meeting once the quorum had been established. However, neither of them voted with regard to the meeting date. Even if they did, it is hard to see how that could have tarnished the following sessions. The plaintiffs do not claim that the date chosen gave Airport any special advantage. Moreover, the record does not reveal anything that leads the court to conclude that either of the committee members took part in the selection of special counsel to represent the board at the December 9 meeting. Under those circumstances, the court cannot find an appearance of impropriety which reasonably can be said to have tainted the remand hearings.

II. OPEN PUBLIC MEETINGS ACT

Next, the plaintiffs argue that the board violated the Open Public Meetings Act, specifically N.J.S.A. 10:4-9(a), by failing to give adequate notice as defined by N.J.S.A. 10:4-8(d). In summary, N.J.S.A. 10:4-8(d) requires that a written advance notice of at least 48 hours must: (1) be submitted to two newspapers as described by the statute, (2) be prominently posted in at least one public place reserved for such notices and (3) be filed with the clerk of the municipality. The plaintiffs allege, and the defendants do not dispute, that Airport failed to post or file the notice of the December 9 meeting in the manner required by the Act.

Airport seeks to justify the failure to conform with the statute by invoking the so-called "last proviso clause" of N.J.S.A. 10:4-15(a). That section directs, in part, that:

[A]ny action for which advance published notice of at least 48 hours is provided as required by law shall not be voidable solely for failure to conform with any notice required in this act.

Airport asserts that the purpose of this statutory exception was to avoid duplication of notice when the notice of a meeting is governed by another statute which has its own procedure requiring actual advance published notice. Airport contends that its failure to comply with the Open Public Meetings Act is cured by its compliance with the publication requirements of the Municipal Land Use Law under N.J.S.A. 40:55D-12. That section requires that notice be published in the official newspaper of the municipality, if there be one, or in a newspaper of general circulation in the municipality.

It is true that the purpose of the "last proviso clause" is to prevent the needless invalidation of public meetings when another statute requires notice comparable to that required under the Open Public Meetings Act. In re Application of County of Monmouth, 156 N.J.Super. 188, 193, 383 A.2d 740 (App.Div.1978). However, Airport has not cited the court to any case which holds that the notice provisions of the Municipal Land Use Law can be utilized to satisfy the posting and filing requirements of the Open Public Meetings Act by utilizing the "last proviso clause." The court also has not found any authority. A cogent argument could be formulated on either side of this unresolved question.

On the one hand, it could be said that Airport's reading of the statute would defeat the purpose of the Open Public Meetings Act which provides alternate methods by which the public can receive notice of impending meetings. There are, after all, people who do not read the newspaper or who may seek meeting information in other ways. The Open Public Meetings Act protects those individuals by providing them with another means of obtaining notice of the meeting pursuant to the procedures set forth in N.J.S.A. 10:4-8(d), that is, by checking the bulletin board or visiting the clerk's office. The Municipal Land Use Law does not contain the same alternatives.

The court is enjoined to avoid any interpretation of the Act which would subvert the right of public access to meetings, undermine public confidence in bodies which govern it, or in any way undo the noble purposes of the "Sunshine Law."...