Paruszewski v. Township of Elsinboro

• Decision Date: 18 May 1998
• Citation: 154 N.J. 45,711 A.2d 273
• Parties: Joseph B. PARUSZEWSKI, Plaintiff-Appellant, v. TOWNSHIP OF ELSINBORO, Township Committee of Township of Elsinboro and the Zoning Board of Adjustment for the Township of Elsinboro, Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 45

154 N.J. 45

711 A.2d 273

Joseph B. PARUSZEWSKI, Plaintiff-Appellant, v. TOWNSHIP OF ELSINBORO, Township Committee of Township of

Elsinboro and the Zoning Board of Adjustment for

the Township of Elsinboro, Defendants-Respondents.

Supreme Court of New Jersey.

Argued Jan. 21, 1998.

Decided May 18, 1998.

Patrick F. McAndrew, Medford, for plaintiff-appellant.

John G. Hoffman, Woodstown, for defendants-respondents.

William John Kearns, Jr., Willingboro, for amici curiae New Jersey State League of Municipalities and New Jersey Institute of Municipal Attorneys (Kearns, Vassallo, Guest & Kearns, attorneys).

The opinion of the Court was delivered by

GARIBALDI, J.

This appeal presents the question of whether the governing body of a municipality may appear through its attorney before the municipal zoning board of adjustment to oppose a nonconforming use certification application. Specifically, we consider whether the governing body has standing to appear before the zoning board through its attorney and whether the appearance of the township attorney creates an impermissible conflict of interest.

I

The Paruszewski family owns a farm in Elsinboro Township, a portion of which had been used as an airfield on a limited basis. In November 1989, the Zoning Officer for Elsinboro Township directed Raymond Paruszewski, the owner of the farm and father of petitioner Joseph Paruszewski ("petitioner"), to cease using his property as an airstrip until he acquired the necessary variances and approvals. On June 27, 1991, petitioner filed applications for a landing area with the Federal Aviation Administration and for an aeronautical facility license with the New Jersey Department of Transportation-Division of Aeronautics ("DOA"). Petitioner also filed a conditional use application with the Elsinboro Township Planning Board ("Planning Board") because the DOA application required local approvals.

In October 1991, the Planning Board reviewed petitioner's application, finding that although the Paruszewski farm was located in a zoning district that permitted basic utility airports as a conditional use, the applicable ordinance neither defined "basic utility airport" nor listed the requisite conditions that an applicant must satisfy in order to be granted a conditional use permit. The Planning Board referred the matter to the Township Committee, requesting that it "resolve this problem by adopting a zoning ordinance dealing specifically with basic utility airports and the conditions, if any, for approval of same." In response, the Township Committee retained a professional planner and relied upon his opinion in deciding that the elimination of basic utility airports as a conditional use was in the public's best interest. The Township Committee adopted Ordinance 42-1 to that effect. Consequently, the Planning Board denied petitioner's application for a conditional use permit.

In February 1992, Paruszewski petitioned the DOA to reconsider his application for an aeronautical facility license. The DOA, in turn, referred the matter to the Office of Administrative Law for a full evidentiary hearing. On August 3, 1994, the presiding Administrative Law Judge placed the case on the inactive list, allowing petitioner time to obtain a nonconforming use certification or a use variance from the Elsinboro Township Zoning Board of Adjustment ("Zoning Board" or "Board"). On August 19, 1994, petitioner filed an application with the Zoning Board for certification that use of the Paruszewski farm as an airfield was a pre-existing nonconforming use.

On September 6, 1994, in a closed session, the Township Committee, as the governing body of the municipality, decided to oppose petitioner's application to the Zoning Board. To represent its interests, the Committee directed the Township Attorney, John Hoffman ("Hoffman"), to appear at the Zoning Board hearing. Hoffman's task was to present evidence establishing that the use of the Paruszewski farm as an airfield was not a previous nonconforming use, or alternatively, that it had been abandoned. The Township Committee's position was based on the professional planner's opinion that operating an airfield on the farm would be detrimental to the Township's master plan and zoning scheme.

The Board held hearings on petitioner's application on September 21 and October 19, 1994. At the initial hearing, the Zoning Board's attorney described petitioner's application; ensured that no voting member had a conflict of interest; introduced and explained the proposed role of Hoffman, the Township Attorney; and outlined the applicable law regarding nonconforming uses. Subsequently, Hoffman explained that he was appearing on behalf of the governing body and on behalf of those citizens who opposed petitioner's application. However, there was no indication that he had actually been retained by any private citizens. Hoffman then examined witnesses and submitted oral and written arguments on behalf of the governing body in opposition to petitioner's application. Petitioner did not object to the participation of Hoffman at the hearing. Following the testimony of petitioner, his father, and several of their neighbors, the Zoning Board concluded that the farm had been used as an airstrip only sporadically since the Paruszewski family acquired the land in 1950. Therefore, the use "did not rise to the level of [an] accessory use" and was "not a preexisting, non-conforming use."

On December 27, 1994, petitioner filed a complaint in lieu of prerogative writs against the Township Committee, the Zoning Board, and the Township of Elsinboro. On April 16, 1996, the Law Division granted defendants' motion for summary judgment, dismissing petitioner's complaint with prejudice. The Appellate Division affirmed. 297 N.J.Super. 531, 688 A.2d 662 (1997). Relying on Township of Dover v. Board of Adjustment, 158 N.J.Super. 401, 386 A.2d 421 (App.Div.1978), and Zoning Bd. of Adjustment v. Datchko, 142 N.J.Super. 501, 362 A.2d 55 (App.Div.1976), the panel found that "a substantial impairment of the zoning plan," which constituted an "arrogation of authority" would result in a governing body having standing and the right to sue. 297 N.J.Super. at 541, 688 A.2d 662. The court reasoned that implicit in the Dover court's recognition of the governing body's right to sue the zoning board in some circumstances "is the governing body's additional right to make an appropriate record before the zoning board." Id. at 542, 688 A.2d 662. Therefore, the court held that the governing body acted "wholly within its rights in appearing before the zoning board to lay before that body its views with respect to the merits of plaintiff's application." Id. at 543, 688 A.2d 662. In addition, the court held that Hoffman's appearance did not present a reversible conflict of interest. Id. at 539, 688 A.2d 662.

This Court granted certification, 149 N.J. 406, 694 A.2d 192 (1997), limited to the issues arising out of the Township Attorney's appearance before the Zoning Board in opposition to petitioner's nonconforming use application. Like the trial court and Appellate Division below, we conclude that the governing body had standing to oppose petitioner's nonconforming use certification application before the Zoning Board and that the appearance of the Township Attorney did not present a reversible conflict of interest. Thus, we affirm.

II

We first outline the relevant constitutional and statutory provisions that provide a framework for determining whether the governing body had standing and the authority to appear before the zoning board in opposition to the nonconforming use certification petition. The governing body, defined as "the chief legislative body of the municipality," N.J.S.A. 40:55D-4, is vested with broad power by the state constitution and statutes. Article IV, Section 7, paragraph 11 of the New Jersey Constitution provides:

The provisions of this Constitution and of any law concerning municipal corporations formed for local government ... shall be liberally construed in their favor. The powers of ... such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

Courts have consistently read this constitutional provision as a mandate to liberally construe powers granted to municipalities, either by express terms or by implication, in their favor. Township of Berkeley Heights v. Board of Adjustment, 144 N.J.Super. 291, 296, 365 A.2d 237 (Law Div.1976) (finding that that constitutional provision compels the courts " 'to interpret statutes liberally in favor of the existence of local power to deal with local needs.' ") (quoting Whelan v. New Jersey Power & Light Co., 45 N.J. 237, 251, 212 A.2d 136 (1965)); see also Fanelli v. City of Trenton, 135 N.J. 582, 591, 641 A.2d 541 (1994) (holding that Legislature's delegation of authority to municipalities is to be interpreted broadly).

Under the general powers granted by Article III of the New Jersey Constitution, the legislative branch of government has been granted the authority to regulate land use. See William M. Cox, New Jersey Zoning and Land Use Administration § 1-1 (1997) [hereinafter New Jersey Zoning ]. Article IV, Section 6, paragraph 2 of the New Jersey Constitution authorizes the Legislature to delegate some of that regulatory power to municipalities. Pursuant to that authority, the Legislature enacted the Municipal Land Use Law of 1975 ("MLUL" or "Law"), N.J.S.A. 40:55D-1 to -136. The MLUL grants townships exclusive powers to enforce the Law, N.J.S.A. 40:55D-18, and to adopt and enforce zoning ordinances, N.J.S.A. 40:55D-62. See also Washington Township Zoning Bd. v. Washington Township Planning Bd., 217 N.J.Super. 215, 221, 525 A.2d 331 (App.Div.) (governing body's power to...