               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION


                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0263-17T1

CENTRAL 25, LLC,

     Plaintiff-Appellant,                APPROVED FOR PUBLICATION

                                                 July 24, 2019
v.
                                            APPELLATE DIVISION
ZONING BOARD OF THE CITY
OF UNION CITY,

     Defendant-Respondent.
______________________________

           Argued November 28, 2018 – Decided July 24, 2019

           Before Judges Fuentes, Accurso and Vernoia.

           On appeal from the Superior Court of New Jersey, Law
           Division, Hudson County, Docket No. L-1246-16.

           Ronald H. Shaljian and Seth I. Davenport argued the
           cause for appellant (Shumann Hanlon, LLC, attorneys;
           Ronald H. Shaljian, of counsel; Seth I. Davenport and
           Joseph Elmo Cauda, Jr., on the brief).

           Gregory F. Kotchick argued the cause for respondent
           (Durkin & Durkin, LLC, attorneys; Gregory F.
           Kotchick, of counsel and on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.
      In Piscitelli v. City of Garfield Zoning Bd. of Adjustment, 237 N.J. 333

(2019), our Supreme Court recently addressed and clarified the standards

governing disqualifying conflicts of interests for municipal planning and zoning

board members and officials. Writing for the Court, Justice Albin explained that

members of these municipal boards must be "free of conflicting interests that

have the capacity to compromise their judgments." Id. at 338. Applying the

Court's reasoning in Piscitelli, we hold that plaintiff presented sufficient

evidence to establish reasonable grounds to question the impartiality of two

members of the Union City Zoning Board of Adjustment (Board). Under the

circumstances presented here, the Law Division erred in failing to conduct an

evidentiary hearing to determine whether these two Board members should have

been barred from hearing plaintiff's application for a use variance because their

personal interests might reasonably be expected to impair their objectivity or

independence of judgment.

      We derive the following facts from the record developed before the Board

and the Law Division.

                                        I

      In 2001, Manuel Alvarez rented a commercial space located at the 2400

block of Bergenline Avenue in Union City, and began operating Panorama Live


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                                       2
Poultry Market Corp. Mr. Alvarez lost his sight "in a tragic accident" in 2003,

causing his wife Niurka Alvarez to take over the day-to-day operation of the

business. The business operated at this location until 2014, when the landlord

raised the rent. In February 2015, the Alvarezes found a property for sale at the

2500 block of Central Avenue in Union City (City), that they thought was

suitable to relocate the business. This area of the City, however, is zoned for

residential use. Thus, to make the relocation possible, the Alvarezes needed to

secure a use variance.

      According to Mr. Alvarez, the seller initially was not willing to provide

an open-ended "zoning contingency" clause in the purchase contract because

"there was another person bidding on the property." To secure a two-month

"investigation" contingency, Mr. Alvarez agreed to pay $50,000 over his initial

offer, for a total purchase price of $685,000. Mr. Alvarez testified that at the

time he made this decision, he was aware that: "I needed to make sure that I was

going to have the blessing by the Mayor."

      On March 5, 2015, Mr. Alvarez and his wife Niurka met with Mayor Brian

P. Stack1 and Alex Velazquez, the head of the City's Health and Housing



1
  Mayor Stack is also a State Senator who represents the 33rd Legislative
District.
                                                                         A-0263-17T1
                                       3
Department. According to Mr. Alvarez, this was the "one day in the week that

[Mayor Stack] receive[s] people to listen to their problems." Mr. Alvarez told

Mayor Stack that the owner of the property where his business was located on

Bergenline Avenue had raised the rent from $2100 to $3800 per month. He told

the Mayor he was unable to remain in business paying this much rent.

Fortunately, he found a suitable property for sale located on Central Avenue and

25th street, only two blocks from his current location. This was within walking

distance of ninety percent of his customers. Mr. Alvarez testified he emphasized

to the Mayor this was a larger one-story standalone structure with "good . . .

ventilation."

      Mr. Alvarez testified that the Mayor told him this "was not his decision.

It was up to the . . . Zoning Board members, but that he had no objections."

According to Mr. Alvarez, the Mayor asked Velazquez for his opinion on the

matter.   In response, Velazquez allegedly characterized the project as a

"magnificent idea" because the building was a corner property, with good

ventilation, and "no apartments above." Mr. Alvarez testified that he left the

Mayor's office "with the feeling that I have his blessing, and with the confidence




                                                                          A-0263-17T1
                                        4
that we could go out and ask for the loan 2 to buy the property." The appellate

record includes a printed copy of an email Mrs. Alvarez sent to Mayor Stack

dated March 6, 2015, memorializing what she claims was discussed at the

meeting the previous day. The Alvarezes formed Central 25, LLC to hold the

title of the property and listed themselves as the only principals. They closed

title on June 18, 2015.

      On September 4, 2015, Central 25, LLC submitted an application to the

Board for preliminary and final site plan approval, which required a number of

bulk variances and a use variance to operate two retail uses: (1) a fish market;

and (2) a live poultry market. The application was originally scheduled to be

heard on October 15, 2015. At plaintiff's request, the hearing was adjourned to

November 12, 2015, to accommodate its planner's scheduling conflict.

According to plaintiff's counsel, on that same day, the Board's attorney recused

himself "presumably because his family owns the building where [the

Alvarezes'] existing poultry market is located."

      Plaintiff's counsel apprised the Board that on November 7, 2015, the

Alvarezes invited area residents to attend a neighborhood meeting at the Central


2
  In his introductory remarks to the Board at the December 10, 2015 meeting,
plaintiff's counsel claimed the Alvarezes mortgaged their home to finance the
purchase of the Central Avenue property.
                                                                        A-0263-17T1
                                       5
Avenue property "to address concerns that they may have." Counsel claimed

that at this gathering, "one of our client's customers produced two letters, over

Mayor Stack's signature, [written] in both Spanish and English, which had been

slipped under the doorway of her home on official Union City stationery." The

letters were marked as exhibits at the Board hearing and are part of the appellate

record.

      The letters are not dated; they are written on paper embossed with the seal

of the City of Union City, identify an affiliation with the Department of Public

Safety, and list the City Hall as its address. "Brian P. Stack, Mayor" is printed

on the top left corner of the letter; the right corner lists the Mayor's Office

telephone and fax numbers. The content of the letter is formatted as a flyer; it

states the following message written in large capital letters, using fonts of

different sizes. We recite the content of the flyer verbatim:

                      Please Read Correction to previous flyer!3



3
  The record before us includes two letters/flyers written in Spanish. In response
to a question from a member of the Board, plaintiff's counsel asserted that the
Spanish language version of the first letter reflects that Mayor Stack "was in
favor" of the proposal to construct a live poultry market located on 25th Street
and Central Avenue. According to plaintiff's counsel, "a subsequent letter
appeared with the Mayor's signature" correcting this mistake. Although the
appellate record contains copies of the letters written in Spanish, plaintiff did
not provide this court with a certified translation of these documents.
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                                        6
    RESIDENTS IN THE AREA OF 25TH STREET & CENTRAL AVENUE

Dear Friend,

      I am writing this letter to inform you that I am personally not in
favor of the live poultry market that is proposed for 25th Street
and Central Avenue. This is not something I believe would benefit or
improve your neighborhood. I know you see, first hand, how hard and how
diligent the Commissioners and I are working to improve your neighborhood
and the City.

      All I ask is if you can attend the meeting on November 12th at 6:00 PM
at City Hall – 2nd Floor at 3715 Palisade Avenue. It is important to voice your
opinion and concerns. I do not have a vote on the board that will hear this
proposal so it is important for you to let your voice be heard.

       Thank you for your dedication to your neighborhood the love we share for
Union City (sic). As always, call me anytime – 7 days a week – if I can help. It
is an honor to serve as your Mayor.

                                            Your friend,
                                            Brian P. Stack
                                            Mayor
                                            Cell: [contains a telephone number.]

      Without a citation to the appendix 4, plaintiff's counsel states that on

November 17, 2015, he received a letter from Board Secretary Carlos Vallejo

advising him that the location of the Board meeting to hear plaintiff's application


4
  Pursuant to Rule 2:6-2(a)(5), all factual claims on appeal must be supported
"by references to the appendix and transcript." Although counsel's statement is
reflected in the transcript of the hearing before the Board, appellate counsel
should have included a copy of the Board Secretary's November 17, 2015 letter
as part of the appendix.


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                                        7
had been changed to Robert Waters Elementary School, located at 2800 Summit

Avenue. The hearing date was also changed to December 10, 2015. Vallejo

directed plaintiff's counsel to send notice of this new date and location, as

required by N.J.S.A. 40:55D-12.

      Plaintiff's counsel marked as an exhibit before the Board an additional

undated flyer5 sent from Mayor Stack on official City stationery, addressed to

the "RESIDENTS IN THE AREA OF 25TH STREET & CENTRAL AVENUE,"

in which the Mayor reaffirmed his condemnation of plaintiff's application. The

Mayor also exhorted the area residents "to attend the meeting on December 10th

at 6:00 PM at Robert Waters Elementary School . . . to voice your opinion and

concerns."

      The Board's Vice Chairman Victor Grullon made the following comments

concerning the Mayor's flyers:

             I just want to clarify for the members of the Board that
             we don’t - - we don’t consider any letter of anybody
             that is not present in the - - in the audience here, to
             defend themselves.

             If you have a letter, and you want to - - for that letter to
             stay in the record, that person has to be present.



5
  This letter/flyer includes a photograph of the Mayor with the City's seal
embossed above it.
                                                                            A-0263-17T1
                                          8
           With that said, we don’t consider any letter that you
           have, or any propaganda. It's probably an opinion of a
           resident of Union City, but we don’t consider that as
           anything that will guide our decisions here.

     In response to Vice-Chairman Grullon's statement, plaintiff's counsel

noted that "the Mayor and Commissioners appoint each of the members of the

Zoning Board." This prompted the following exchange by the attorneys:

           BOARD ATTORNEY: Counsel? Counsel? Counsel?
           This is an independent body. Client just testified that
           he knew that this is an independent body . . . that has to
           make the decision. I would tread softly on what you
           say next.

           PLAINTIFF'S ATTORNEY: And the Mayor's letter, all
           of the Mayor's letters, were sent out intentionally to
           enflame this application.

           BOARD ATTORNEY: Counsel, again - -

           PLAINTIFF'S ATTORNEY: And sabotage - -

           BOARD ATTORNEY: Counsel, I don’t - -

           PLAINTIFF'S ATTORNEY: - - this application.

           BOARD ATTORNEY: The Mayor's not here to testify
           and he's a resident of the town. Any one of these
           residents can contact - -

           PLAINTIFF'S ATTORNEY: The letter was in his
           official capacity, counsel. It wasn’t a letter from a
           private citizen.

                 ....

                                                                        A-0263-17T1
                                       9
            BOARD ATTORNEY: - - and I think - - what I think -
            - I think what . . . the Chairman was saying is it doesn’t
            really affect us.

                  ....

            It doesn’t really affect this body.

            And whether . . . the Mayor was for it or against it, they
            don’t - - it's not for their - - it's not for their ears. 6

      In addition to the Alvarezes' testimony, plaintiff presented the testimony

of a licensed architect, an Animal Health Technician employed by the New

Jersey Department of Agriculture, Division of Animal Health, a licensed

professional engineer, an architect who specialized in environmental services

and indoor air purification systems, and a licensed professional engineer and

planner. Because the focus of our review is limited to ethical considerations,

we have opted not to summarize their testimony.

      Eleven members of the public testified during the Board's public session.

At the conclusion of the public comment session, Vice-Chairman Grullon moved

to deny the application "because it's going to change the characteristic of the


6
  The record also includes copies of anonymous flyers condemning the proposed
live poultry store and characterizing the Alvarezes as "some out-of-towners
[who] want to open a live poultry market that they would never allow to open in
their own town." These flyers were also written in Spanish. There is no
evidence to indicate these flyers were prepared or distributed by the Mayor or
anyone acting on his behalf.
                                                                          A-0263-17T1
                                       10
neighborhood, established residential zone and we . . . are here to respect the

Zoning Ordinance." Without further discussion or comment, six members voted

to deny the application and one voted to grant it. At the time the application

came before the Board for a vote, Board member Margarita Gutierrez was the

Chief Executive Officer (CEO) of the Brian Stack Civic Association

(Association) and Vice-Chairman Grullon was its Vice-President.

                                       II

      On March 21, 2016, plaintiff filed this action in lieu of prerogative writs

challenging the Board's decision pursuant to Rule 4:69-6(b)(3). The judge

originally assigned to hear this matter held a case management conference on

June 13, 2016, as required by Rule 4:69-4 and established the parties' briefing

schedule. This judge thereafter recused himself based on a conflict of interest,

the nature of which was not disclosed on the record. The case was reassigned

to a different judge who heard oral argument November 9, 2016.

      Plaintiff argued the Board's decision denying the application should be

reversed because: (1) the decision was arbitrary and capricious; (2) the

resolution memorializing the denial of the application did not include "findings

of fact and conclusions based thereon" as required by N.J.S.A. 40:55D-10(g);

and (3) the Mayor's improper interference in the application process irreparably


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                                      11
tainted the Board's impartiality and denied plaintiff a fair hearing. With respect

to the Board's impartiality, plaintiff's counsel noted that at the time of the

hearing, Vice-Chairman Grullon, Board member Gutierrez, and the Board's

Secretary Carlos Vallejo "were all officers and trustees of the Brian Stack Civic

Association."

      Plaintiff argued these individuals should have disclosed their membership

and participation in the Association and thereafter recused themselves because

the Mayor's campaign against the application created an impermissible conflict

of interest. The judge initially decided that the Board's memorializing resolution

was deficient "because it did not give enough facts for their basis for the denial,

and a great deal of those statements were conclusions without enough facts."

However, the judge rejected plaintiff's argument based on a conflict of interest

by the two members of the Board who were listed as directors of the Mayor's

Association. The judge provided the following explanation to support of his

decision:

            Plaintiff also contends that Mayor Stack's Civic
            Association is a tool used to secure Mayor Stack's
            alleged political stronghold in Union City.

            While the issue is not - - those statements are without
            evidentiary support.



                                                                           A-0263-17T1
                                       12
            Plaintiff has specifically acknowledged that he does not
            have personal knowledge as to the allegations made in
            regard to the Mayor's Civic Association.

            Moreover, plaintiff has not submitted a certification in
            support of the same, yet plaintiff asks the [c]ourt to
            infer improper behavior on behalf of the Mayor because
            of his Civic Association, essentially, and its influence,
            citing the donation of turkey baskets or candies for
            seniors, but there is no evidence of wrongdoing or
            improper behavior on behalf of the Civic Association,
            and it specifically fails to show that the alleged
            behavior has somehow tainted the Union City Zoning
            Board.

                  ....

            In addition, the plaintiff asserts that there are various
            conflicts of interest between the Board and Mayor
            Stack because three7 members of the Zoning Board of
            Adjustment are members of Mayor Stack's Civic
            Association.

            But the [c]ourt is unconvinced that being merely
            members of an association or a political organization
            would disallow someone from being a member of a . . .
            Board such as the Board of Adjustment, the Library
            Board, the Rent Leveling Board, et cetera.

            Therefore, the accusations lack merit, and the [c]ourt is
            unpersuaded that the Board is so irreparably tainted by
            Mayor Stack's influence, as to render a fair decision.



7
  Only Grullon and Gutierrez are members of the Board. Secretary Vallejo, who
is listed as a director of the Mayor's Association, is not a member of the Board.
He is employed by the City to serve as Secretary to the Board.
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                                      13
      In an order dated November 28, 2016, the court remanded the matter for

the Board to adopt "a memorializing resolution setting forth more specific

findings and conclusions of law" within forty-five days. In response to the

court's order, the Board passed a "Revised Resolution" on January 12, 2017, on

a vote of four to zero with two absent. In an order dated April 4, 2017, the trial

judge established a new briefing schedule and directed the parties to appear on

June 16, 2017, to present oral argument.

      On the day of oral argument, plaintiff's counsel argued that the Revised

Resolution remained deficient. Counsel characterized the first eleven pages of

the resolution as "merely a regurgitation of a summary of the transcript." He

also noted that the resolution does not "evaluate, question, [or] reject . . . the

testimony of plaintiff's experts in this matter." According to plaintiff's counsel,

the Board used "boilerplate language" in lieu of actual fact-finding. Counsel

urged the judge "to take a very hard look" because, in his opinion, the Board had

once again failed to carry out its fact-finding statutory duty. The Board's

attorney argued the Revised Resolution fully responded to the court's earlier

ruling and contained the required factual findings. The judge reserved decision

at the end of oral argument.




                                                                           A-0263-17T1
                                       14
      In an oral decision delivered from the bench on July 27, 2017, the judge

found no grounds to disturb the Board's decision and dismissed plaintiff's cause

of action with prejudice. Although the testimony of plaintiff's experts was not

challenged, the judge held the Board was not obligated to accept their findings

and opinions. The judge entered a final order on August 8, 2017, memorializing

his decision.8

                                      III

      We start our analysis with Justice Albin's cautionary proclamation in

Piscitelli: "Public confidence in the integrity of our municipal planning and

zoning boards requires that board members be free of conflicting interests that

have the capacity to compromise their judgments." 237 N.J. at 338 (emphasis

added). Thus, the question here is not whether Mayor Stack attempted to unduly

influence the Board's evaluation of this application. What we are required to


8
   Although not raised by the parties or noted by the trial judge in his oral
opinion, we are compelled to point out the following irregularity. The second
Revised Resolution dated January 12, 2017 was signed by Board Chairman
Andres Garcia. The transcript of the December 10, 2015 Board meeting lists
Chairman Garcia as "absent" at that meeting. Thus, the resolution denying
plaintiff's application was signed by Vice-Chairman Grullon, who presided at
the meeting. The appellate record does not include a transcript of the January
12, 2017 Board meeting, at which the Board presumably passed the final
"Revised Resolution." On remand, the Law Division must determine whether
Chairman Garcia was legally competent to vote and sign the final Revised
Resolution pursuant to N.J.S.A. 40:55D-10.2.
                                                                        A-0263-17T1
                                      15
determine is whether any members of the Board who voted to deny this

application had a personal interest that "might reasonably be expected to impair

[their] objectivity or independence of judgment." Ibid. (citing N.J.S.A. 40A:9-

22.5(d); N.J.S.A. 40:55D-69; N.J.S.A. 40:55D-23(b)).

      Here, the record shows that Board member Margarita Gutierrez was the

CEO of the Brian Stack Civic Association and Vice-Chairman Victor Grullon

was its Vice President.     The record also shows that Mayor Stack actively

campaigned against plaintiff's application to obtain a variance from the Board

to operate a live poultry market in a residential zone.          Based on these

uncontested facts, we hold the trial judge erroneously framed the dispositive

question. The issue here is not: Did plaintiff present sufficient evidence to show

that the Board's judgment as a whole was irreparably tainted by Mayor's Stack's

activities? The Mayor, as an elected public official and a resident of the City,

had the right to express his opinion on this proposed project. The question we

must answer here is: Were the two members of the Board who held high ranking

positions in a highly visible, public civic association which bears the Mayor's

name, barred from voting on this application? As was the case in Piscitelli, the

record before us is not sufficient to definitively answer this question.




                                                                           A-0263-17T1
                                       16
      In Piscitelli, members of a prominent family in the City of Garfield

submitted an application to the Garfield Board of Adjustment for site plan

approval and variances to construct a gas station, car wash, and other related car

services on three lots. 237 N.J. at 338. As framed by the Court, the issue was

"whether any members of the Garfield Zoning Board of Adjustment had a

disqualifying conflict of interest because of the involvement of certain Con te

family members in the Zoning Board proceedings." Ibid. The three members

of this prominent family who owned these lots were all physicians.

      One of the doctors had also served as a member of the Garfield Board of

Education for many years, and was its president at the time the site plan

application came before the Zoning Board. Id. at 339. Five members of the

Zoning Board were employed by the Board of Education or had immediate

family members who worked for the school district.           Ibid.   To avoid an

appearance of a conflict, the owners of the lots made a series of intra-family

transfers of title. Thereafter, the doctor, who also served as the president of the

Board of Education, attended the Zoning Board hearing "and made clear his

position favoring the project." Ibid.

      Two objectors to the application addressed the Zoning Board and noted

that the doctor, as President of the Board of Education, voted on personnel


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                                        17
matters. Ibid. Therefore, the five Zoning Board members who were employed

or had immediate family members employed by the Board of Education had a

conflict of interest that barred them from hearing the application. Ibid. These

objectors also claimed that any member of the Zoning Board who was a patient

or had immediate family members who were patients of this doctor or his brother

were equally barred from voting on the outcome of this application. Ibid.

However, none of the Zoning Board members disqualified themselves on

conflict-of-interest grounds. Ibid. The Zoning Board approved the application

and granted all of the necessary variances. Ibid.

      The objectors filed an action in lieu of prerogative writs arguing the failure

of the Zoning Board members to recuse themselves based on this conflict of

interest "undermined the legality of the proceedings." Ibid. The trial court not

only upheld the Zoning Board's decision "finding that no conflicts of interest

had impaired the Board members[,]" but it also denied the objectors' request to

determine whether any Zoning Board members or their family members were

patients of the President of the Board of Education, his brother, or his nephew.

Ibid. This court affirmed the trial court's decisions. Id. at 340.

      The Supreme Court reversed and remanded the matter "for further

proceedings to decide whether any Zoning Board member had a disqualifying


                                                                            A-0263-17T1
                                       18
conflict of interest in hearing the application[.]" Ibid. The Court gave the trial

court the following instructions:

            The trial court must assess two separate bases for a
            potential conflict of interest. First, did [the doctor] . . .
            as president or a member of the Board of Education --
            have the authority to vote on significant matters relating
            to the employment of Zoning Board members or their
            immediate family members? Second, did any Zoning
            Board members or an immediate family member have a
            meaningful patient-physician relationship with any of
            the three . . . doctors? If the answer to either of those
            questions is yes, then a conflict of interest mandated
            disqualification and the decision of the Zoning Board
            must be vacated. We do not possess sufficient
            information to answer those questions. We therefore
            reverse the judgment of the Appellate Division and
            remand to the trial court to determine whether any
            disqualifying conflicts impaired the Zoning Board
            proceedings.

            [Ibid.]

      In reaching this conclusion, the Court in Piscitelli emphasized and

reaffirmed that the overarching purpose of conflict of interest laws are: (1) "to

ensure that public officials provide disinterested service to their communities;"

and (2) to "promote confidence in the integrity of governmental operations." Id.

at 349 (quoting Thompson v. City of Atlantic City, 190 N.J. 359, 364 (2007)).

The Court identified the following three "distinct" sources of authority to

determine whether zoning board members have a disqualifying conflict of


                                                                            A-0263-17T1
                                        19
interest that require their recusal: (1) the Local Government Ethics Law,

N.J.S.A. 40A:9-22.2; (2) the Municipal Land Use Law (MLUL), N.J.S.A.

40:55D-69; and (3) the common law, which, although now codified in those

conflict statutes, remains a useful tool of construction in those cases requiring

judicial oversight. Id. at 350.

      The Local Government Ethics Law defines a "local government officer"

as a person "serving on a local government agency which has the authority to

enact ordinances, approve development applications or grant zoning

variances[.]" N.J.S.A. 40A:9-22.3(g)(2). The statute also provides that:

            No local government officer or employee shall act in
            his official capacity in any matter where he, a member
            of his immediate family, or a business organization in
            which he has an interest, has a direct or indirect
            financial or personal involvement that might
            reasonably be expected to impair his objectivity or
            independence of judgment;

            [N.J.S.A. 40A:9-22.5(d) (emphasis added).]

In the following passage in Piscitelli, Justice Albin dispelled any ambiguity that

may have existed about the scope of the ethical standards the Legislature

imposed to govern the conduct of local government officers:

            In enacting this code of ethics for municipal officers
            and employees, the Legislature declared its intent by
            stating:


                                                                          A-0263-17T1
                                       20
                   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;

                   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.

                   [Id. at 351 (quoting N.J.S.A. 40A:9-22.2(a)
                   to (c)).]

      Of particular relevance to the case before us, Justice Albin emphasized

that proper judicial oversight requires judges to construe N.J.S.A. 40A:9-22.5(d)

in a manner that "further[s] the Legislature's expressed intent that '[w]henever

the public perceives a conflict between the private interests and the public duties

of a government officer,' 'the public's confidence in the integrity' of that officer

is 'imperiled.'" Ibid. (Emphasis added).

      However, this code of ethics is not the only law that regulates the conduct

of members of zoning boards. The MLUL describes the composition of the

zoning board of adjustment, sets strict eligibility standards on who may be

appointed to serve as a member, and describes what type of conduct or personal

interest may disqualify a member from deciding a particular application.


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                                        21
Specifically: "No member of the board of adjustment shall be permitted to act

on any matter in which he has, either directly or indirectly, any personal or

financial interest." N.J.S.A. 40:55D-69 (emphasis added).

     As Justice Albin noted in Piscitelli:

           The overlapping conflict-of-interest codes that apply to
           this case can be distilled into a few common-sense
           principles. 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 impartial
           performance of his duties as a member of the public
           body." The 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.'" "The question will
           always be whether the circumstances could reasonably
           be interpreted to show that [conflicting interests] had
           the likely capacity to tempt the official to depart from
           his sworn public duty."

           A conflict of interest arises whenever a public official
           faces "contradictory desires tugging [him or her] in
           opposite directions." This objective inquiry into
           whether a disqualifying conflict is present dispenses
           with any probing into an official's motive because the
           ultimate goal is to ensure not only impartial justice but
           also public confidence in the integrity of the
           proceedings.

           [237 N.J. at 352-53 (emphasis added) (citations
           omitted).]




                                                                        A-0263-17T1
                                      22
      Guided by these ethical standards, we are satisfied the record developed

before the Board does not provide sufficient information to determine whether

the circumstances surrounding Board member Gutierrez's and Vice-Chairman

Grullon's membership in and relationship with the Brian Stack Civic Association

and Mayor Stack's active opposition to plaintiff's application could reasonably

be construed to show a likely capacity to tempt the officials to depart from their

sworn public duty at the time they voted to deny plaintiff's application.

Piscitelli, 237 N.J. at 353.

      It is undisputed that Mayor Stack actively campaigned against plaintiff's

application, disseminated flyers that expressed his opinion on the matter, and

urged area residents to attend the Board meeting and testify against the

application. The record also shows that at the time the application came before

the Board, Gutierrez was the CEO of the Civic Association that bears the

Mayor's name and Grullon was its Vice-President.

      The Law Division judge did not consider the ethical implications of this

information. The high-level of participation in the Mayor's Association by these

two Board members might reasonably be viewed by the applicant and the public

at large as significant factors capable of impairing their objectivity or

independence of judgment.


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      The record plaintiff presented to the Law Division included a copy of the

Mayor's Civic Association's 2014 tax returns, which showed it was registered

with the Internal Revenue Service as a tax exempt organization. The list of

officers and directors obtained from the New Jersey Business Entity and Records

Service lists Grullon, the Board's Vice-Chairman, as Vice-President of the

Association and Board member Gutierrez as the Association's CEO.            The

Board's Secretary is listed as one of the Association's Directors.

      The Law Division Judge minimized the Association's activities and

influence as involving merely "the donation of turkey baskets or candies for

seniors." The filed tax returns of the Association for 2014 indicate it received

contributions totaling $660,419 and spent $673,253, leaving a net deficit of

$12,834. This document also shows the Association's contributions for 2013

totaled $557,402, with expenditures of $546,429, leaving a net positive balance

of $10,973. The first page for the Association's tax returns for 2012 shows

contributions totaling $500,619, and expenditures of $500,257, leaving a net

positive balance of $362; the first page of the returns for 2011 shows

contributions totaling $477,512, and expenditures of $477,065, leaving a net

positive balance of $447; the tax returns for 2011 also show contributions




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received in 2010 totaling $477,070, and expenditures for that same year of

$490,157, leaving a net deficit of $13,087.

      It is well-settled that hearings conducted before a zoning board of

adjustment to decide an application for a land use approval are quasi-judicial

proceedings. Dolan v. DeCapua, 16 N.J. 599, 612 (1954). Zoning boards must

make factual determinations based on the record developed before them and

decide whether the applicant has satisfied the statutory criteria for variances.

Baghdikian v. Board of Adjustment of Ramsey, 247 N.J. Super. 45, 49 (App.

Div. 1991). Its powers include the "judicial" role of deciding questions of

credibility and whether to accept or reject testimony, expert or otherwise.

Griggs v. Zoning Bd. of Adjustment of Princeton, 75 N.J. Super. 438, 446 (App.

Div. 1962). Although our Supreme Court has recognized that based on their

familiarity of their community's characteristics and interests, zoning boards'

members are "best equipped to pass initially on such applications for variance."

Ward v. Scott, 16 N.J. 16, 23 (1954), they may not rely on undisclosed facts that

are not part of the record. Gougeon v. Board of Adjustment of Stone Harbor,

52 N.J. 212, 221 (1968).

      As the Court made clear in Piscitelli, "common law conflict-of-interest

principles inform our understanding of the Local Government Ethics Law and


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the MLUL." 237 N.J. at 352. "A public official is disqualified from participating

in judicial or quasi-judicial proceedings in which the official has a conflicting

interest that may interfere with the impartial performance of his duties as a

member of the public body." Scotch Plains-Fanwood Bd. of Educ. v. Syvertsen,

251 N.J. Super. 566, 568 (App. Div. 1991).

      The tax return records of the Brian Stack Civic Association show that in

the five-year period, from 2010 to 2014, it received contributions totaling

$2,673,022 and disbursed $2,687,161. These records do not disclose the nature

of the Association's activities. It is reasonable to presume, however, that these

activities are intended and designed to promote the Mayor's interests. Even a

cursory review of the limited financial information plaintiff gathered from

public records shows that its activities may be far more expansive than "the

donation of turkey baskets or candies for seniors."       Board Vice-Chairman

Grullon's role as the Association's Vice-President and Board member's

Gutierrez's role as the Association's CEO requires a thorough, objective inquiry

into whether these dual roles created a disqualifying conflict in this case.

Piscitelli, 237 N.J. at 353.

      The Law Division judge must review, consider, and determine whether

the high level positions Grullon and Gutierrez had in the Mayor's Association at


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the time plaintiff's application came before the Board, viewed in the context of

the Mayor's aggressive opposition to plaintiff's application, constituted an

indirect personal interest under N.J.S.A. 40:55D-69, precluding both of them

from participating in this matter. The judge must also determine whether the

Mayor's aggressive advocacy against the granting of plaintiff's application

created reasonable grounds to establish a conflict of interest for Grullon and

Gutierrez under N.J.S.A. 40A:9-22.2 and/or provided reasonable grounds under

the common law for the public to doubt the impartiality of these two Board

members. Finally, we leave it to the trial judge's discretion to determine whether

plaintiff is entitled to discovery in the form of a limited number of written

interrogatories and/or deposition testimony from Grullon and Gutierrez. In the

words of Justice Albin in Piscitelli: "the ultimate goal is to ensure not only

impartial justice but also public confidence in the integrity of the proceedings."

237 N.J. at 353.

      Reversed and remanded. We do not retain jurisdiction.




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