                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-5916-17T1

GREG VOCI,

          Plaintiff-Appellant,

v.

HARD CHEESE AC, LLC, and
THE CITY OF ATLANTIC CITY
ZONING BOARD OF ADJUSTMENT,

     Defendants-Respondents.
________________________________

                    Submitted May 29, 2019 – Decided July 11, 2019

                    Before Judges Yannotti and Gilson.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. L-1189-17.

                    Monzo Catanese Hillegass, PC, attorneys for appellant
                    (F. Thomas Hillegass and John P. Amenhauser, on the
                    briefs).

                    Testa Heck Testa & White, PA, attorneys for respondent
                    Hard Cheese AC, LLC (Todd W. Heck, on the brief).

                    John Scott Abbott, attorney for respondent the City of
                    Atlantic City Zoning Board of Adjustment.
PER CURIAM

      This appeal arises out of a prerogative writs action in which plaintiff Greg

Voci challenged a resolution by the Zoning Board of Adjustment of the City of

Atlantic City (Zoning Board), which granted use and bulk variances to defendant

Hard Cheese AC, LLC (Hard Cheese or the Applicant), so that it could build a

car wash.     Plaintiff appeals from an August 3, 2018 order denying

reconsideration of a June 15, 2018 order, which rejected the challenges to the

variances. Plaintiff argues the resolution should be invalidated because the then-

Mayor Donald Guardian testified in favor of Hard Cheese's application, thereby

undermining the impartiality of the Zoning Board's hearing and contravening

the conflict-of-interest rules. The trial court found, however, that there was no

showing that the Mayor had any conflict of interest. We affirm because the

record supports that finding.

                                        I.

      In 2017, defendant Hard Cheese filed an application with the Zoning

Board requesting use and bulk variances to construct an automated car wash

facility on a vacant lot in Atlantic City. The property for the proposed car wash

is located in neighborhood-commercial and single-family-attached zoning

districts. Hard Cheese's proposed car wash is not a permitted use in either

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                                        2
district, thus, a use variance is required. Hard Cheese also sought bulk variances

from two parking lot requirements.

      On March 23, 2017, the Zoning Board held a public hearing on Hard

Cheese's application.    At that hearing, four people testified:       then-Mayor

Guardian; Licensed Professional Engineer and Planner Jon Barnhart;

Montgomery Dahm, the principal of Hard Cheese; and the owner of a business

located near the proposed car wash. All of those people testified in favor of the

application and no one opposed the application.

      At the beginning of the hearing, counsel for the Applicant explained that

the Mayor wanted to comment on the application as a member of the public.

Counsel requested the Zoning Board to allow the Mayor to testify first because

the Mayor had another meeting he was going to attend. In making that request,

counsel acknowledged that members of the public usually speak at the end of

Zoning Board hearings. The Zoning Board granted counsel's request and the

Mayor testified in favor of Hard Cheese's application. Specifically, the Mayor

testified in relevant substance:

            I just wanted to speak favorably about this project. You
            know, I know it sounds like just a car wash, but if we
            only do the big projects that the big boys from outside
            spend $100-million, than we'll end up recanting. I'm
            not attacking - - We can't do (indiscernible). And big


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                                        3
            projects aren't enough. We need little people, ma and
            pa organizations to be doing something here.

The Mayor also testified:

            We need the small projects that are ow - - owned by
            local people, local residents, and in the big projects as
            well. So I just wanted to speak favorably. I understand
            that there may be some need for some zoning
            adjustments on the spot, but it's a vacant spot with
            nothing going on. This is not heavily used, this side of
            - - of the - - the street. . . . And I was concerned about
            this spot with other commercial uses that it would be
            quite crowded, and that probably would be a problem
            because it is still a residential neighbor - - poor
            residential neighborhood. Probably don't know that
            they could come in and object at this meeting. So I
            think it's definitely a good use for this project. It - - It's
            a good a project and I hope you look favorably on it
            being a business (indiscernible) project. I'll be happy
            to answer any questions you have for me.
      No one asked any questions of the Mayor. Instead, the Zoning Board

Chairman thanked the Mayor for attending the hearing and sharing his

comments. At that time, the following exchange occurred between the Mayor

and the Chairman:


            CHAIRMAN LONGCRIER: And [the Zoning Board]
            believe[s] in the diversity of business and mixed use
            and things like that. So it will be said - - I don't want
            to be premature. - - after the vote. And - - But we will
            have our questions and our concerns, but, of course, we
            always believe we give everyone a fair shake.



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                                          4
            MAYOR GUARDIAN: Yeah. Don't give him an easy
            --

            CHAIRMAN LONGCRIER: Yes. Yes.

            MAYOR GUARDIAN: You could - -

            CHAIRMAN LONGCRIER: Yes.
            MAYOR GUARDIAN: - - (indiscernible) do what
            you're supposed to do - -
            CHAIRMAN LONGCRIER: Yes.

            MAYOR GUARDIAN: - - all the other restraints and
            things, but make certain - - but make sure - -

            CHAIRMAN LONGCRIER: Yes.
            MAYOR GUARDIAN: - - that he makes a buck so he
            pays his taxes.
            CHAIRMAN LONGCRIER: Yes. All right. All right.
      After the Mayor's testimony, the Applicant presented its case in support

of the use and bulk variances. To support its variance requests, the Applicant

first presented testimony from Jon Barnhart. Barnhart testified in detail as to

why the variances were appropriate. Regarding the use variance, Barnhart

testified that the property was particularly well-suited for the proposed car wash

based on the limited hours of the facility, the surrounding businesses, and the

character of the street abutting the property. Barnhart further testified that the

proposed car wash would promote the general welfare by providing a service to

the community in an aesthetically pleasing facility.       Concerning the bulk
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                                        5
variance, Barnhart testified there was a hardship necessitating the variance as

the required parking space setback would prevent the development of the

property for any use based on the layout of the site. Moreover, Barnhart testified

that the benefit of the deviations in the length of the parking spaces and the

required setback for the parking area would outweigh any harm they caused.

       Next, Montgomery Dahm, the principal of Hard Cheese, testified briefly.

Thereafter, the Zoning Board questioned counsel for the Applicant on a number

of details concerning the requested variances. After answering those questions,

the Applicant finished its presentation, and the hearing was opened to the public

for comment.

       At that time, a local business owner testified. He stated that he was the

owner of a laundromat located across the street from the proposed car wash. He

spoke favorably of the proposed car wash, describing it as "a great opportunity"

and "a nice eye opener thing for people" entering Atlantic City.

       The public portion of the hearing then closed, and the Zoning Board voted

on the application. All six members present voted to approve the Applicant's

request for the use and bulk variances needed to build and operate the car was h

facility.




                                                                          A-5916-17T1
                                        6
      In a resolution adopted on April 27, 2017, the Zoning Board memorialized

its decision. Concerning the use variance, the Zoning Board concluded that the

proposed use of the property as an automated car wash facility was "an

appropriate use which is particularly well suited for the subject property." The

Zoning Board explained that the property was located on a "main artery" of

Atlantic City and that the property had been vacant for a substantial period. The

Zoning Board also found that "[t]he proposed car wash is aesthetically appealing

and does not have the noise or other impacts associated with car washes." As

such, the Zoning Board concluded that the proposed car wash was "compatible

with the zoned uses and the actual pattern of development."

      As to the bulk variances, the Zoning Board determined that the requested

setback for the parking area and the decreased parking space length dimensions

would "not have a substantial detriment to the zone plan[.]" The Zoning Board

found the car wash would provide a valuable service to the neighborhood and

surrounding areas and its design "was not contemplated by the governing body

and thus constitutes a change in circumstances" that was sufficient "to reconcile

the grant of the use variance with the omission of such use from the zone." The

Zoning Board's approval of the use and bulk variances was conditioned upon

Hard Cheese complying with multiple conditions detailed in the resolution.


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                                       7
        On June 12, 2017, plaintiff filed a complaint in lieu of prerogative writs

against Hard Cheese and the Zoning Board. Plaintiff is the owner of a car wash

located less than one mile from Hard Cheese's proposed car wash. Plaintiff had

not opposed the variances before the Zoning Board. In his complaint, plaintiff

alleged that the Zoning Board acted arbitrarily, capriciously, and unreasonably

by approving defendant Hard Cheese's application for use and bulk variances.

Specifically, plaintiff contended that Hard Cheese had not established the

positive and negative criteria needed for use and bulk variances as required by

N.J.S.A. 40:55D-70(d).

        Defendants filed their answers. Thereafter, the trial court issued an order

setting forth a briefing schedule and a date for a final hearing. In its brief in

support of its challenge to the resolution, plaintiff argued that the Mayor's

appearance before the Zoning Board and his statement in support of the

application created a conflict of interest that "tainted" the entire hearing.

        On December 11, 2017, the trial court held a hearing and the parties

presented oral argument.1 Thereafter, on June 15, 2018, the trial court issued an

order and eighteen-page written opinion denying plaintiff's challenges to the

resolution. The trial court found that the Zoning Board's decision granting use


1
    We were not given a copy of the transcript of the December 11, 2017 hearing.
                                                                            A-5916-17T1
                                         8
and bulk variances was not arbitrary, capricious, or unreasonable. The trial court

further held that the Mayor's appearance before the Zoning Board did not taint

the hearing. In that regard, the court found that plaintiff had presented no

evidence that the Mayor had a direct or indirect pecuniary interest in the car

wash project. The court also found that there was no evidence that the Mayor

had any personal interest in the project. Moreover, the court found that there

was no showing that the Mayor's appearance before the Zoning Board

improperly influenced the Zoning Board or any of its members because the

Mayor did not appoint the Zoning Board members. Instead, the court found that

the Mayor had "merely express[ed] comments in favor of a local project[.]"

Accordingly, the trial court entered final judgment upholding the Zoning Board's

resolution.

      On July 5, 2018, plaintiff filed a motion for reconsideration. After hearing

oral argument on August 3, 2018, the court denied plaintiff's motion for

reconsideration, and read its decision into the record. Later that day, the court

entered a written order memorializing its denial of reconsideration. Plaintiff

then filed a notice of appeal, but appealed only the August 3, 2018 order denying

reconsideration.




                                                                          A-5916-17T1
                                        9
                                       II.

      Plaintiff raises one issue on appeal. He argues that the trial court abused

its discretion by not finding that the Mayor's testimony before the Zoning Board

tainted the proceedings. We reject this argument because there was no showing

of a conflict of interest or other improper conduct by the Mayor or the Zoning

Board.

      We review a denial of a motion for reconsideration for an abuse of

discretion. Brunt v. Bd. of Trs., Police & Firemen's Ret. Sys., 455 N.J. Super.

357, 362 (App. Div. 2018). An abuse of discretion occurs "when a decision is

'made without a rational explanation, inexplicably depart[s] from established

policies, or rest[s] on an impermissible basis.'" Ibid. (quoting Pitney Bowes

Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382 (App. Div.

2015)). Nevertheless, we review de novo the law governing conflicts of interest,

including the statutory and common law. Piscitelli v. City of Garfield Zoning

Bd. of Adjustment, 237 N.J. 333, 350 (2019) (citing Dunbar Homes, Inc. v.

Zoning Bd. of Adjustment, 233 N.J. 546, 559 (2018)); see also 388 Route 22

Readington Realty Holdings, LLC v. Twp. of Readington, 221 N.J. 318, 338

(2015) ("In construing the meaning of a statute, an ordinance, or our case law,




                                                                         A-5916-17T1
                                      10
our review is de novo." (citing Farmers Mut. Fire Ins. Co. of Salem v. N.J. Prop.-

Liab. Ins. Guar. Ass'n, 215 N.J. 522, 535 (2013))).

      Our Supreme Court has recently reiterated that "[t]he overall objective 'of

conflict of interest laws is to ensure that public officials provide disinterested

service to their communities' and to 'promote confidence in the integrity of

governmental operations.'" Piscitelli, 237 N.J. at 349 (quoting Thompson v.

City of Atlantic City, 190 N.J. 359, 364 (2007)). Resolving whether a conflict

of interest prevented the Mayor from testifying in favor of Hard Cheese's

application is governed by the Local Government Ethics Law (LGEL), N.J.S.A.

40A:9-22.1 to -22.25; the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-

1 to -163; and the common law. Piscitelli, 237 N.J. at 349-50.

      The LGEL applies to all municipal office holders, including mayors and

members of zoning boards. Id. at 350. See also N.J.S.A. 40A:9-22.3(g). In

enacting this code of ethics for municipal officers and employees, the

Legislature recognized:

            a. Public office and employment are a public trust;

            b. The vitality and stability of representative
               democracy depend upon the public's confidence in
               the integrity of its elected and appointed
               representatives;




                                                                          A-5916-17T1
                                       11
            c. Whenever the public perceives a conflict between
               the private interests and the public duties of a
               government officer or employee, that confidence is
               imperiled;

            d. Governments have the duty both to provide their
               citizens with standards by which they may
               determine whether public duties are being faithfully
               performed, and to appraise their officers and
               employees of the behavior which is expected of
               them while conducting their public duties[.]

               [N.J.S.A. 40A:9-22.2(a) to (d).]

Thus, the LGEL aims to "make ethical standards in state and local government

'clear, consistent, uniform in their application, and enforceable on a statewide

basis.'" Grabowsky v. Twp. of Montclair, 221 N.J. 536, 552 (2015) (quoting

Wyzykowski v. Rizas, 132 N.J. 509, 531 (1993)).

      To that end, N.J.S.A. 40A:9-22.5(d) provides that

            [n]o local government officer or employee shall act in
            his [or her] official capacity in any matter where he [or
            she], a member of his [or her] immediate family, or a
            business organization in which he [or she] has an
            interest, has a direct or indirect financial or personal
            involvement that might reasonably be expected to
            impair his [or her] objectivity or independence of
            judgment[.]

      Next, the MLUL applies specifically to members of municipal zoning

boards, and it provides that no member of a zoning board "shall be permitted to

act on any matter in which he [or she] has, either directly or indirectly, any


                                                                        A-5916-17T1
                                      12
personal or financial interest." N.J.S.A. 40:55D-69; accord Piscitelli, 237 N.J.

at 352; Grabowsky, 221 N.J. at 552.

      Similar to the statutory requirements of the LGEL and the MLUL, in

Wyzykowski, our Supreme Court enunciated the four situations under the

common law where a public official is disqualified on conflict-of-interest

grounds. Specifically, an official is disqualified when he or she has:

            (1) "Direct pecuniary interests," when an official votes
            on a matter benefitting the official's own property or
            affording a direct financial gain; (2) "Indirect pecuniary
            interests," where an official votes on a matter that
            financially benefits one closely tied to the official, such
            as an employer, or family member; (3) "Direct personal
            interest," when an official votes on a matter that
            benefits a blood relative or close friend in a non-
            financial way, but in a matter of great
            importance, . . . and (4) "Indirect [p]ersonal [i]nterest,"
            when an official votes on a matter in which an
            individual's judgment may be affected because of
            membership in some organization and a desire to help
            that organization further its policies.

            [Grabowsky, 221 N.J. at 553 (second and third
            alterations in original) (quoting Wyzykowski, 132 N.J.
            at 525).]
      The overarching principle of the conflict-of-interest provisions under the

LGEL, the MLUL, and the common law is that "[a] citizen's right to 'a fair and

impartial tribunal' requires a public official to disqualify himself or herself

whenever 'the official has a conflicting interest that may interfere with the

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                                       13
impartial performance of his [or her] duties as a member of the public body. '"

Piscitelli, 237 N.J. at 352-53 (quoting Grabowsky, 221 N.J. at 551). In resolving

whether an official has a disqualifying interest, "[t]he question is not 'whether a

public official has acted dishonestly or has sought to further a personal or

financial interest; the decisive factor is "whether there is a potential for

conflict."'" Id. at 353 (quoting Grabowsky, 221 N.J. at 554). To answer that

question, a court must determine "whether the circumstances could reasonably

be interpreted to show that [conflicting interests] had the likely capacity to tempt

the official to depart from his [or her] sworn public duty." Ibid. (first alteration

in original) (quoting Wyzykowski, 132 N.J. at 523).

      Courts should, however, apply the conflict-of-interest rules cautiously, as

"[l]ocal governments would be seriously handicapped if every possible interest,

no matter how remote and speculative, would serve as a disqualification of an

official."   Grabowsky, 221 N.J. at 554 (alteration in original) (quoting

Wyzykowski, 132 N.J. at 523). Indeed, public officials "cannot and should not

be expected to be without any personal interest in the decisions and policies of

government[.]" N.J.S.A. 40A:9-22.4; see also Grabowsky, 221 N.J. at 554 ("It

is essential that municipal offices be filled by individuals who are thoroughly

familiar with local communities and concerns."). Accordingly, "the nature of


                                                                            A-5916-17T1
                                        14
an official's interest must be carefully evaluated based on the circumstances of

the specific case." Grabowsky, 221 N.J. at 554 (citing Van Itallie v. Borough

of Franklin Lakes, 28 N.J. 258, 268 (1958)); accord Piscitelli, 237 N.J. at 353-

54.

      Applying these principles to the facts in this case, plaintiff did not

establish that the Mayor had any conflict of interest or that the Mayor's

appearance before the Zoning Board tainted the proceedings. Initially, it is

important to clarify what plaintiff is contending and what evidence plaintiff

presented. Plaintiff is not alleging that any Zoning Board member had a conflict

of interest. Thus, there was no showing that anyone who voted for the resolution

had a conflict of interest. Moreover, plaintiff did not present any evidence that

the Mayor had a direct or indirect pecuniary interest in the car wash project.

      Instead, plaintiff's objection is based on a vague generalized contention

that the Mayor was acquainted with the principal of Hard Cheese and had held

some fundraising events at the principal's restaurant. Critically, however, there

was no evidence supporting those vague assertions.

      The evidence in the record establishes that the Mayor appeared and

testified in favor of the application as a member of the public. The Mayor

himself did not participate in the Zoning Board's vote on the variances.


                                                                         A-5916-17T1
                                      15
Accordingly, the Mayor is not prohibited from testifying by the LGEL, the

MLUL, or the common law since he took no official action, such as voting, on

behalf of the application. See N.J.S.A. 40A:9-22.5(d); N.J.S.A. 40:55D-69;

Piscitelli, 237 N.J. at 351-53; Grabowski, 221 N.J. at 553; Wyzykowski, 132

N.J. at 525-26.

      Plaintiff argues that the Mayor should be per se prohibited from testifying

before the Zoning Board as a member of the public because he is "the highest

ranking government official in the City of Atlantic City," and, thus, he has the

potential to exert a "psychological influence" over the Zoning Board. Our

Supreme Court has already rejected the position that a mayor's appearance

before a zoning board automatically compromises the impartiality of the

proceeding by creating a disqualifying conflict of interest. See Wyzykowski,

132 N.J. at 528, 530-31. Instead, the Court held that the conflict-of-interest

provisions of the common law and LGEL continue to guide the inquiry even in

situations involving the testimony of a mayor or other high-ranking official. See

id. at 529-32.

      Plaintiff also argues that the hearing was tainted by the Mayor's testimony

because the Zoning Board accorded special treatment to the Mayor in allowing

him to testify out of order and not subjecting him to cross-examination. This


                                                                         A-5916-17T1
                                      16
argument is not supported by the record. The Mayor explicitly stated: "I'll be

happy to answer any questions you have for me." Thereafter, no questions were

asked and there were no objections placed on the record concerning the manner

or substance of the Mayor's testimony. As to the order of the Mayor's testimony,

counsel for the Applicant requested that the Zoning Board permit the Mayor to

testify first due to a schedule conflict. Counsel acknowledged that the public

usually testifies at the end of a public hearing. It was within the Zoning Board's

discretion to allow the Mayor to testify first.       Based on the underlying

circumstances, granting that request did not undermine the impartiality of the

proceedings.

      Finally, it should be noted that there is no evidence that any of the Zoning

Board members were disqualified from voting on the application due to the

Mayor's testimony. The Mayor had not and will not be appointing the Zoning

Board members because those appointments are made by the City Council of

Atlantic City. See City of Atlantic City, N.J., City Code § 163-27(A) (2019).

      In sum, the Mayor's testimony did not taint the Zoning Board's grant of

the use and bulk variances. Under the LGEL, MLUL, and the common law, the

Mayor was permitted to provide public comment on the application as it

concerned a decision affecting the entire community, rather than a personal or


                                                                          A-5916-17T1
                                       17
private interest. Moreover, the Mayor did not participate in the actual decision-

making process. Finally, there is no evidence that any of the Zoning Board

members should have been disqualified from voting based on the Mayor's

testimony.

      Affirmed.




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