Care of Tenafly, Inc. v. Tenafly Zoning Bd. of Adjustment
| Decision Date | 27 January 1998 |
| Citation | 704 A.2d 1032,307 N.J.Super. 362 |
| Parties | CARE OF TENAFLY, INC., a Not For Profit Corporation of the State of New Jersey, Janice Jacobs and Gayle Chertoff, Plaintiffs-Respondents, v. The TENAFLY ZONING BOARD OF ADJUSTMENT, Defendant, and The Mayor and Council of the Borough of Tenafly and the Borough of Tenafly, Defendants-Respondents, and The Great Atlantic & Pacific Tea Company, Defendant-Appellant. James HIGGINS, Judy Alderson, Richard D. Levin, James J. Virgona, Thomas J. Perog, April J. Bradley Delusio, David Steinberg, Shakarjian Realty Co., Inc., Milton Hart, Constantine H. Cadenas, Fred A. Selsky, Constance Selsky, Rudolph Bernstein, Pearl Bernstein, Albert Stone, Elinore Stone, Howard Sacharoff, Hope Sacharoff, Doris Franklin, Committee for Tenafly Businesses, an unincorporated association, and The Grand Union Company, Plaintiffs-Respondents, v. BOROUGH OF TENAFLY and Mayor and Council of the Borough of Tenafly, Defendants-Respondents, and The Board of Adjustment of the Borough of Tenafly, Defendant, and The Great Atlantic & Pacific Tea Company, Defendant-Appellant. CARE OF TENAFLY, INC., a Not For Profit Corporation of the State of New Jersey, Janice Jacobs and Gayle Chertoff, Plaintiffs-Respondents, v. The TENAFLY ZONING BOARD OF ADJUSTMENT, Defendant, and The Great Atlantic & Pacific Tea Company, Inc., Defendant-Appellant. James HIGGINS, Judy Alderson, Richard D. Levin, James J. Virgona, Thomas J. Perog, April J. Bradley Delusio, David Steinberg, Shakarjian Realty Co., Inc., Milton Hart, Constantine H. Cadenas, Fred A. Selsky, Constance Selsky, Rudolph Bernstein, Pearl Bernstein, Albert Stone, Elinore Stone, Howard Sacharoff, Hope Sacharoff, Doris Franklin, Committee for Tenafly Businesses, an unincorporated association, the Grand Union Company, Carolyn J. Sewell, Charles F. Sewell, Herbert Levetown, Bernice Levetown, Arthur Bauer, Susan Bauer, Joseph Bieger, Elaine Bieger, Wyckoff Quality Bakery Tenafly, Inc., Rudy Froeder, at Risk Enterprises, Inc., Mansoor Arain, Rosalind Steinberg, Ronald Ci |
| Court | New Jersey Superior Court — Appellate Division |
Gail L. Price, Woodcliff Lake, and Alfred L. Ferguson, Newark, for defendant-appellant (Price, Meese, Shulman & D'Arminio, Woodcliff Lake and McCarter & English, Newark, attorneys; Ms. Price, Louis C. D'Arminio, Mr. Ferguson and Gary T. Hall, of counsel and on the brief).
Steven Morey Greenberg, Hackensack, for plaintiffs-respondents Care of Tenafly, Inc., Janice Jacobs and Gayle Chertoff (Greenberg & Lanz, attorneys; Mr. Greenberg and Susan S. Rutherford, on the brief).
Walter A. Lesnevich, Tenafly, for defendants-respondents Borough of Tenafly and Mayor and Council of the Borough of Tenafly (Lesnevich & Marzano-Lesnevich, attorneys; Mr. Lesnevich, on the brief).
John J. Segreto, Haledon, for plaintiffs-respondents James Higgins, Judy Alderson, Richard D. Levin, James J. Virgona, Thomas J. Perog, April J. Bradley DeLusio, David Steinberg, Shakarjian Realty Co., Inc., Milton Hart, Constantine H. Cadenas, Fred A. Selsky, Constance Selsky, Rudolph Bernstein, Pearl Bernstein, Albert Stone, Elinore Stone, Howard Sacharoff, Hope Sacharoff, Doris Franklin, Committee for Tenafly Businesses, The Grand Union Company, Carolyn J. Sewell, Charles F. Sewell, Herbert Levetown, Bernice Levetown, Arthur Bauer, Susan Bauer, Joseph Bieger, Elaine Bieger, Wyckoff Quality Bakery Tenafly, Inc., Rudy Froeder, At Risk Enterprises, Inc., Mansoor Arain, Rosalind Steinberg, Ronald Citro and Ketan Kenia (Segreto & Segreto, attorneys; James V. Segreto, of counsel and on the brief).
George Milanos, Tenafly, for defendant Tenafly Zoning Board of Adjustment.
Before Judges HAVEY, LANDAU and COLLESTER.
The opinion of the court was delivered by
HAVEY, P.J.A.D.
In this zoning case, defendant Great Atlantic and Pacific Tea Company, Inc. (A & P), appeals from a judgment declaring invalid a variance and site plan approval granted to it by defendant Tenafly Zoning Board of Adjustment (Board). Judge Hamer, in a comprehensive oral opinion, concluded that a member of the Board, whose mother owned a commercial enterprise approximately fifty feet from A & P's site, possessed a disqualifying conflict of interest which invalidated the approvals. We agree and affirm.
In November 1993, A & P applied to the Board for a special reasons variance and site plan approval to construct a supermarket with attached satellite stores on a 9.9 acre tract in Tenafly. The lot is zoned M-1, which permits uses such as light manufacturing, warehousing, office buildings and research laboratories. Since a retail supermarket is not a permitted use, a special reasons variance was required.
Prior to the first public hearing on November 22, 1993, the Board conducted a public "work session," at which Board member John Armaniaco disclosed that his mother owned commercial property on Piermont Road, approximately 50 feet from the north-westerly point of A & P's site. The Board's attorney advised Armaniaco that he was not in conflict of interest and could participate in the hearing. The remaining Board members concurred with the attorney's opinion. Neither A & P representatives nor representatives from any objectors, were present during the workshop.
During the subsequent eighteen public hearings, Grand Union Company and its employee, James Higgins, appeared in opposition to A & P's application. Neither opponent, nor any other interested party, raised the conflict of interest claim during the course of the hearings. At the close of the testimony, the Board conducted an executive session. During the session Armaniaco again raised the potential conflict of interest question and was again advised by the Board's attorney that no conflict existed. On October 10, 1994, the Board by written resolution, granted the special reasons variance by a five-to-two vote. Armaniaco voted in favor of the resolution.
Care of Tenafly, Inc. (Care), Grand Union and several Tenafly residents filed appeals to the Tenafly Borough Council. The Council affirmed the grant of the use variance by a three-to-three vote. See N.J.S.A. 40:55D-17e.
Subsequently, Care and others filed an action in lieu of prerogative writs challenging the special reasons variance. Grand Union and Higgins filed a separate action.
During the pendency of the in lieu actions, the Board approved A & P's final site plan application on May 15, 1995. Plaintiffs thereupon filed separate complaints challenging the site plan approval. In all of the prerogative writs complaints, plaintiffs raised the conflict of interest question respecting Armaniaco. The actions were consolidated, and Judge Hamer ordered that Armaniaco submit to a deposition on the conflict issue.
Armaniaco testified that he is in the business of operating heavy machinery. He owns several properties in Tenafly, as well as interests in limited liability corporations (LLCs) which also own property within the borough. His sister has a fifty percent interest in two of the LLCs.
Armaniaco's eighty-three-year-old mother is ninety-five percent owner of a third LLC, "125 Piermont Road, LLC." His sister owns the remaining five percent. This LLC owns the commercial property referred to by Armaniaco during the workshop session which is fifty feet from A & P's site. Prior to A & P's variance application, 125 Piermont Road was leased to Rent-A-Wreck, a car rental business. While A & P's applications were pending before the Board, Rent-A-Wreck, a month-to-month tenant, requested a written lease. Armaniaco acknowledged that in the fall of 1994, he was consulted by his mother and sister as to whether they should enter into a written lease with Rent-A-Wreck. They also asked him his opinion regarding the proposed rental figure. He concurred in the idea of a written lease and told them "I thought that [the rental figure] was fair." According to Armaniaco, his mother and sister asked him about the lease "[b]ecause I am part of the family." Armaniaco also disclosed that his mother had no plans to sell the commercial property because she was using the rent as a source of income "to live on."
During the bench trial Judge Hamer considered the deposition testimony of Armaniaco, as well as the record made before the Board. He determined that Board member Armaniaco had an "absolute," "disqualifying" and "impermissible" conflict of interest which rendered the approvals voidable. The judge focused on the fact that Armaniaco's mother's commercial property was just fifty feet from the A & P site, and the variance and site plans, if granted by the Board "would have a financial impact on the property ... whether it be good, bad or whatever." The judge also considered Armaniaco's investment experience, his consultation with his mother and sister regarding the lease with Rent-A-Wreck, and the prospect that he may be a beneficiary under his mother's estate, in determining whether Armaniaco had a direct or indirect personal interest in the outcome of the applications before the Board. Finding that Armaniaco had acted in good faith and was "up front" in disclosing the potential conflict, the judge nevertheless concluded that the "potential" for psychological influence required his disqualification.
A & P argues that the invalidation of its approvals "represents an unprecedented and wholly unwarranted misapplication of conflict of interest principles." In support of the contention, A & P cites to the following: (1) neither Armaniaco nor his mother had any interest in or relationship to A & P; (2) no evidence in the record exists demonstrating that an approval of A & P's applications would have an impact, positive or negative, on the mother's property; (3) Armaniaco's mother did not participate in the hearing before the Board;...
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