BOROUGH OF RIDGEFIELD v. BOROUGH OF RIDGEFIELD ZONING BOARD OF ADJUSTMENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5045-07T15045-07T1

BOROUGH OF RIDGEFIELD,

Plaintiff-Appellant,

v.

BOROUGH OF RIDGEFIELD ZONING

BOARD OF ADJUSTMENT AND

GRAND SUMMIT ASSOCIATION, INC.,

Defendants-Respondents.

_________________________________

 

Argued February 23, 2010 - Decided

Before Judges Carchman, Lihotz and Ashrafi.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-1731-07.

Charles Rabolli, Jr., argued the cause for appellant (Carlet, Garrison, Klein & Zaretsky, L.L.P., attorneys; Mr. Rabolli, on the brief).

David S. Lafferty argued the cause for respondent Borough of Ridgefield Zoning Board of Adjustment (Kelly, Kelly, Marotta & Lafferty, L.L.C., attorneys; Mr. Lafferty, on the brief).

Jason T. Shafron argued the cause for respondent Grand Summit Association, Inc. (Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Hartz, L.L.C., attorneys; Patrick Papalia, of counsel and on the brief).

PER CURIAM

This dispute reviews a municipal governing body's challenge that its zoning board arrogated its zoning authority. Plaintiff Borough of Ridgefield (Ridgefield or Borough) alleges defendant Borough of Ridgefield Zoning Board of Adjustment (Board) exceeded its authority when it granted use and bulk variances to defendant Grand Summit Association, Inc. (Grand Summit) to construct a multi-story age-restricted condominium complex in a commercial zone. Among the arguments presented on appeal is Ridgefield's challenge that the Board's action was an arrogation of its power to zone. The trial judge, in a well-reasoned written opinion, concluded Ridgefield lacked standing to pursue its claims and dismissed its complaint. The trial court also addressed the merits and rejected Ridgefield's position. Following our review of the arguments presented on appeal, the record and the applicable law, we affirm.

I.

Grand Summit proposed the development of an eighty-five unit, fifty-five and older age-restricted residential complex with a multi-level underground parking garage on an one and one-half acre undeveloped parcel of land, designated as Block 1601, Lot 2 on the Borough's tax map. The parcel fronts both Broad Avenue and Grand Avenue and is located in the "Office Low-Rise Zone District" (O-LR).

The parcel's topography impedes development, as the lot is steeply sloped downward. Grand Avenue is "somewhat level," but there is an eight-foot grade change -- from sixty-two feet to fifty-four feet -- along Broad Avenue. The property also slopes back to front with a difference in elevation across the south-end of the parcel of twenty-six feet and across the north-end of thirty-four feet.

Grand Summit's development addressed this unusual topography and also attempted to reflect the varied construction make-up of the property's two bordering streets. The proposed structure is oriented "not visually, but functionally to Broad Avenue" so that it relates less to the "business/industrial" character of Grand Avenue and more to the residential zones on Broad Avenue. The front of the building, which faces Broad Avenue, includes a 1650 square foot ground-floor lobby and concierge area and three additional residential floors. The rear of the building, which faces Grand Avenue, consists of seven floors. Thus, when viewed from Broad Avenue, the property's slope will create the appearance of a smaller, four-story structure.

The proposed residential units are predominately two bedrooms and two bathrooms, ranging from 1103 to 1216 square feet. Additionally, twenty percent of the units, specifically, seventeen one-bedroom apartments, would be devoted to low- and moderate-income residents, complying with standards established by the Council on Affordable Housing (COAH). Other amenities include an 1800 square foot swimming pool, shower and locker area, and a 700 square foot exercise room.

The O-LR district is designed to facilitate the development or redevelopment of small office buildings and specifically prohibits structures exceeding thirty-five feet in height or those devoted to residential use. Ridgefield Code 390-81-82 (1) and (2). Grand Summit filed its application before the Board seeking a variance for the proposed residential use of the site, N.J.S.A. 40:55D-70(d)(1); a height variance to accommodate the proposed seven-story tower abutting Grand Avenue, with an average building height of 57.52 feet, N.J.S.A. 40:55D-70(d)(6); Ridgefield Code 390-39.1; and a variance to accommodate the proposed building coverage of thirty-six percent, as only thirty percent is allowed, N.J.S.A. 40:55D-70(c)(1) and (c)(2); Ridgefield Code 390-39.1. The proposed development complied with all parking and setback requirements.

Public hearings to review Grand Summit's application were held before the Board on November 20, December 14, and December 21, 2006. Grand Summit's engineer, Calisto Bertin, prepared the site plan and conducted a traffic impact study. Bertin discussed the specific geographic characteristics of the property that made it difficult to develop and that the proposed structure was suited to the unusual lot. Regarding the development's anticipated effect on traffic, Bertin concluded the designed traffic pattern and the ample on-site parking would ease any anticipated increase in traffic or parking.

Grand Summit also presented the testimony of the project architect, Conrad Roncati, who addressed handicapped parking and access for emergency and fire equipment. Finally, the project planner, Roger DiNiscia, related the "positive" reasons for granting the variance, as set forth in the Municipal Land Use Law of 1975 (MLUL), N.J.S.A. 40:55D-1 to -129. These included the development meets a "very critical planning need" for age-restricted senior housing, defined as an inherently beneficial use; the property's unique topography is particularity suited for the proposed development but ill-suited for an office complex; community-dedicated senior housing is a specifically defined use that advances a recognized purposes of planning, N.J.S.A. 40:55D-2( ); Ridgefield Code 390-3(H); and finally, the proposed development would transform the longstanding vacant parcel into a much needed community use. DiNiscia additionally addressed the "negative" criteria. He testified the proposed development would not be detrimental to the site or the surrounding area, as (1) there would be no noticeable impact on Grand Avenue's traffic volume that overall would be significantly less than had the site been developed office space, (2) it would not impact drainage, aesthetics or visibility, and (3) any impact on Broad Avenue would be minimized as the building would only appear to be a four-story structure and set-back from the roadway.

During the public comment portion of the hearing, questions were raised regarding drainage, increased traffic in what was characterized as an "already dangerous" driving area, the high cost of the units, which appeared beyond the financial reach of Ridgefield's senior population, and the inaccessibility to emergency and fire personnel. Grand Summit's professionals rebutted each of these contentions.

The hearing resumed on December 14, 2006. DiNiscia continued his testimony, comparing the proposed use to the intent and purpose of Ridgefield's zoning ordinance and zoning plan. Also, DiNiscia addressed the special reasons necessitating the use variance. First, he explained that age-restricted housing is an "inherently beneficial" use having "intrinsic community value," which "should be favorably considered in any municipality." Ridgefield residents would benefit because twenty percent of the units were affordable housing units.

He opined municipalities should encourage age-restricted housing, noting Ridgefield's population within the fifty-five plus age group was twenty-seven percent and "on the rise." Because the site itself borders four zones, it provides broad access to this directed population. Next, given the site's physical limitations, DiNiscia stated the property was particularly suited for the proposed use rather than an office building. The proposed development will better serve the area without worsening drainage or traffic conditions and provide improved aesthetics. Finally, granting the use would not alter the zoning in the area because the structure is oriented toward the multi-family residential district on Broad Avenue.

The next witness was Grand Summit's fire protection engineer, Gerald J. Naylis, who discussed the extra safety measures taken to prevent fire spreading from the parking garage to the interior of the apartment complex. Naylis addressed the fire-resistant garage construction and the proposed fire safety suppression and alarm systems. Naylis also commented on the Ridgefield Fire Department's ability to combat a fire in the complex.

Ridgefield's Fire Chief expressed his concerns regarding signage and the need for extra fire hydrants. An emergency squad representative posed questions regarding ambulance access and whether the development would place a potential strain on services. Grand Summitt's professionals responded to each inquiry, highlighting the building's features designed to make emergency rescue easier, and they committed to cooperate with emergency and fire personnel to alter the design, as necessary to meet any concerns.

At this point, the floor was opened for additional public comment. Generic concerns were voiced regarding affordability, the possible strain the project might place on government services and the effect the development would have on the character of the community. The Board rescheduled the application for December 21, 2006, to allow comment by the town planner, Richard Vollmar. Vollmar had reviewed the application and prepared a report, however, was unable to attend this meeting.

Vollmar agreed the site was particularly well-suited for the proposed project, as it was well-adapted to the physical hardships of the property. Additionally, Vollmar agreed senior citizen housing was an inherently beneficial use as defined in the MLUL and advanced several other purposes of the MLUL, including "[t]o encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare[,]" N.J.S.A. 40:55D-2(a); "[t]o ensure that the development of individual municipalities does not conflict with the development and general welfare of neighboring municipalities, the county and the State as a whole[,]" N.J.S.A. 40:55D-2(d); "[t]o encourage the location and design of transportation routes which will promote the free flow of traffic while discouraging location of such facilities and routes which result in congestion or blight[,]" N.J.S.A. 40:55D-2(h); "[t]o promote a desirable visual environment through creative development techniques and good civic design and arrangement[,]" N.J.S.A. 40:55D-2(i); and "[t]o encourage senior citizen community housing construction[,]" N.J.S.A. 40:55D-2( ). Vollmar also commented that twenty percent, or seventeen units, would be low- or moderate-income housing.

Vollmar express his opinion that the project also satisfied the MLUL's negative criteria. See N.J.S.A. 40:55D-70 (providing "[n]o variance . . . may be granted . . . including a variance . . . involving an inherently beneficial use, without a showing that such variance . . . can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance"). He opined the project would not spur surrounding property owners to seek zoning changes since the housing on Broad Street was already "pretty close" to the character of the proposed development, and Grand Avenue was already heavily developed with non-residential buildings. Vollmar noted but could not offer comment on the proposed density of the project except to state that eighty-five units exceeded the suggested density standard for senior housing, which was thirty to forty units per acre.

The floor was opened to the public for the third time. Additional questions were presented regarding fire safety, whether geriatric pedestrians could manage the traffic congestion posed by the two major streets and the overall size of the project for the site. Two other concerns were raised. First, the Chairperson of the Ridgefield Environmental Commission sought an environmental impact assessment. Second, the Ridgefield Fire Chief requested assurances that Grand Summit would agree to design modifications of the fire suppression system in the enclosed underground parking garage.

The Board approved the application, granting the variances by a five-to-two vote. A memorializing resolution was adopted on January 18, 2007.

On March 9, 2007, the Borough filed a complaint in lieu of prerogative writs contending "the Board ha[d] usurped Ridgefield's zoning authority by transcending its variance authority, and more specifically by approving a project that [wa]s completely inconsistent with the Borough's Master Plan, zone plan and is vehemently opposed by the public." Ridgefield also argued the Board's vote was tainted by a conflict of interest. Specifically, Ridgefield asserted the Board's Chairman, Harold F. Nebbia, declined to recuse himself despite the fact that he was the Treasurer of the Ridgefield Democratic Municipal Committee (Committee), which had received two separate political contributions from Grand Summit.

Trial commenced on April 14, 2008. The parties prepared a six-page statement of stipulated facts, marked documents into evidence, and offered oral argument regarding the identified issues for determination. Ridgefield first asserted a conflict of interest nullified Nebbia's vote; therefore, the resolution was not passed by the requisite five members. On the other hand, the Board maintained Ridgefield had no standing to challenge the Board's determination.

The trial judge issued a written opinion on April 29, 2008, concluding Ridgefield lacked standing in the first instance to present the action:

Plainly, on conventional land use grounds . . . [Ridgefield] does not enjoy standing in this case. It has not presented any competent evidence of such factors as 1) the size of the tract in relation to the size and character of both the district in which it is located and the municipality as a whole and 2) the nature, degree and extent of the variation from district regulations that are sought. The most that may be said of [Ridgefield's] position is that the Board granted use, height, and bulk variances that are contrary to the zoning ordinance. This is exactly the work that the Legislature has commended to boards of adjustment under the MLUL, that is, the individualized consideration of parcels and the grant of variances if warranted under the law.

. . . If the court employed the governing body's calculus - - that is, any supposed agency defect arrogates authority - - municipalities would always have standing to sue subordinate agencies. This view is not compatible with the much more restrained view, which recognizes that the Legislature did not intend for the governing body to infringe upon the prerogatives of the Board because the Board is particularly well equipped to make those decisions based on its members' local insight and knowledge.

Quoting N.J.S.A. 40A:9-22.5(f), the Law Division judge determined "[n]o evidence in this case supported the notion that Nebbia had 'knowledge or reason to believe that the campaign contribution, if accepted, was given with the intent to influence the local government officer in the discharge of his official duties[,]'" and that Nebbia's role as Treasurer of the Democratic Committee was "ministerial at best." Further,

even if a conflict of interest existed, it would not be for [Ridgefield] to root out the conflict and pursue the instant action. Notwithstanding all of its other police powers, in the absence of adopting its own local ethics ordinance or board of ethics under N.J.S.A. 40A:9-22.19, I doubt that the governing body is invested with the standing to act as the ethics police. Rather, the Local Finance Board is vested with [this] authority . . . . [Ridgefield] is simply not an appropriate plaintiff.

The court briefly addressed the additional substantive issues raised by Ridgefield. It rejected the argument that after the Board's denial of Grand Summit's 2006 application for age-restricted housing, res judicata barred consideration of the current application. The trial judge found the current application "was substantially unlike its two prior applications." Finally, the trial judge rejected Ridgefield's challenge to the adequacy of the memorializing resolution and the Board's implementation of the MLUL, concluded Ridgefield had "not shown that the Board's actions [were] arbitrary, capricious, or unreasonable[,]" and dismissed its complaint with prejudice. This appeal ensued.

II.

A.

Because the trial judge decided the case as a matter of law, our review of his determination is de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Manalapan Realty, L.P. v. Tp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

We first examine whether Ridgefield has standing to launch its legal challenge against the autonomous Board. Resolution of this question must precede review of the efficacy of the Board's actions.

"Standing is a threshold requirement for justiciability." Watkins v. Resorts Int'l Hotel & Casino, 124 N.J. 398, 421 (1991). "'In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues.'" Allen v. Wright, 468 U.S. 737, 750-51, 104 S. Ct. 3315, 3324, 82 L. Ed. 2d 556, 569 (1984) (quoting Warth v. Seldin, 422 U.S. 490, 498, 95 S. Ct. 2197, 2205, 45 L. Ed. 2d 343, 354 (1975)). If Ridgefield lacks standing, the court may not review the substantive matters presented.

As a rule, a municipal governing body may not challenge the lawful exercise or the manner of exercise of authority afforded its board of adjustment. Paruszewski v. Tp. of Elsinboro, 154 N.J. 45, 54 (1998); Township of Dover v. Bd. of Adj., 158 N.J. Super. 401, 408-09 (App. Div. 1978). In this regard, "[c]ounty or local governing bodies generally lack standing to challenge actions of government agencies merely because they represent the public. Protecting public interests is important, but it does not take precedence over the need to prevent one governmental body from interfering with the actions of another public body." In re Camden County, 170 N.J. 439, 447 (2002) (citations omitted). The single circumstance conferring standing upon a municipal governing body to file an action, in lieu of prerogative writs against another municipal entity, occurs when the entity has acted in derogation of its authority. Township of Stafford v. Stafford Tp. Zoning Bd. of Adj., 154 N.J. 62, 76 (1998).

There is an imprecise "line between what must be done by an exercise of the zoning power and what may be done by variance relief[.]" Dover, supra, 158 N.J. Super. at 411. Variances permitting a non-conforming use "'should be granted sparingly and with great caution[.]'" D. Lobi Enters., Inc. v. Planning/Zoning Bd., 408 N.J. Super. 345, 360 (App. Div. 2009) (quoting New York SMSA, L.P. v. Bd. of Adj., 370 N.J. Super. 319, 331 (App. Div. 2004)). This is the exclusive province of a zoning board and the power "may not be exercised by any other municipal agency, N.J.S.A. 40:55D-68; N.J.S.A. 40:55D-20." Stafford, supra, 154 N.J. at 69. On the other hand, the power to zone is vested in the local governing body, N.J.S.A. 40:55D-62, and a board of adjustment "'may not, in the guise of a variance proceeding, usurp the legislative power reserved to the governing body of the municipality to amend or revise the [zoning] plan[.]'" Vidal v. Lisanti Foods, Inc., 292 N.J. Super. 555, 561 (App. Div. 1996) (quoting Feiler v. Ft. Lee Bd. of Adj., 240 N.J. Super. 250, 255 (App. Div. 1990), certif. denied, 127 N.J. 325 (1991)); see also Paruszewski, supra, 154 N.J. at 51. "That is, a municipal governing body may bring suit when a board has exceeded its statutory powers and attempted, through a use variance, to impose its own view as to the most appropriate use or uses for a particular portion of a municipality." Township of N. Brunswick v. Zoning Bd. of Adj., 378 N.J. Super. 485, 490 (App. Div.) (citing Dover, supra, 158 N.J. Super. at 409), certif. denied, 185 N.J. 266 (2005); see also Stafford, supra, 154 N.J. at 81 (holding a governing body may file an action in "those rare circumstances where a zoning board exceeds the scope of its authority").

Our determination, then, is "whether the impact of the requested variance will . . . substantially alter the character of the district as that character has been prescribed by the zoning ordinance[,]" Dover, supra, 158 N.J. Super. at 412-13, such that the Board exceeded its powers, necessitating Ridgefield's action to protect its legislatively conferred power to zone. The court's inquiry is "'one of both geographic and functional substantiality vis- -vis the plan and scheme of the municipality's zoning ordinance.'" North Brunswick, supra, 378 N.J. Super. at 491 (quoting Dover, supra, 158 N.J. Super. at 413). Further, the analysis requires a finding that the granted variances exert a substantive impairment of the zone plan, tantamount to rezoning.

To support its contention that the Board has arrogated the power to zone, Ridgefield relies on North Brunswick, suggesting that case "is almost identical to the matter at bar." In North Brunswick, we reviewed the plaintiff governing body's successful challenge overturning the defendant Board's grant of use and bulk variances to a developer, without finding an inherently beneficial use, to construct eighty-five luxury senior citizen apartments in a residential zone limited to single-family detached homes. Id. at 488. Like this matter, North Brunswick was a "small tract" case, involving a 3.66 acre lot, ibid. as opposed to other reported decisions "involv[ing] large tracts of land comprising most or all of a particular zone." Id. at 492 (citing Vidal, supra, 292 N.J. Super. at 557-61, which involved a 17.8-acre site comprising the entirety of one zone and a significant portion of another); Dover, supra, 158 N.J. Super. at 406 (reviewing variances for a tract comprising eighty-one acres).

In North Brunswick, the trial court concluded the history of the single-family residential zone, confirmed when the plaintiff "specifically designated the zone for future density reduction" approximately one year prior to the defendant's grant of a variance, reinforced the fact that putting a high-rise apartment complex, with a density of almost ten times that permitted by the zone, would be "clearly contrary to the intent and purpose of the Township's Master Plan and zone plan[,]" and the effect of the variance would "alter the character of the area" and was "inconsistent with the intended development scheme" of the district. Id. at 489. We affirmed the trial court's determination that "the requested variance would substantially alter the character of the district as set forth in the applicable zoning ordinance." Id. at 491 (citing Dover, supra, 158 N.J. Super. at 412-13). We noted use variances for parcels that "pertain[] to a substantial portion of or an entire zone district" may be more easily identified as actions that begin to resemble "de facto rezoning[,]" id. at 492-93, and usurpation could result when the grant of a use variance for a small tract "'substantially alter[s] the character of the district as that character has been prescribed by the zoning ordinance.'" Id. at 493 (quoting Dover, supra, 158 N.J. Super. at 412-13). We concluded that the defendant ignored the plaintiff's recent zoning change seeking to "avoid[] excessive density in this predominately residential neighborhood[,]" and "blatantly rejected the [plaintiff's] zoning plan and improperly arrogated to itself the power to substitute its idea of an appropriate zone plan." Id. at 494.

Such is not the case here. This record too includes a recent zone change from O-5 MR (Office/Mid-rise) to O-LR (Office/Low-rise), an amendment imposing minimal impact on the area. More importantly, there is no evidence suggesting Ridgefield's altered zoning scheme was made to effectuate density reduction or to avoid the use now proposed by Grand Summit. Rather, the uncontroverted testimony demonstrated that Grand Summit's development was consistent with the surrounding residential area on Broad Avenue, the proposed use was found "inherently beneficial," and the Board's grant of the use variance was reconciled with the zoning plan. Lang v. Zoning Bd. of Adj., 160 N.J. 41, 58 (1999).

Adapting the lot's topography allowed Grand Summit to minimize the impact of the seven-floor structure such that the face of the building fronting the residential neighborhood appeared to be only four stories, similar to existing apartment complexes on Broad Avenue. The larger, seven-story rear of the building abutted non-residential commercial properties on Grand Avenue.

In Dover, supra, when reviewing a use variance request for an eighty-one acre tract, we suggested four factors to be considered when reviewing whether a zoning board's grant of a use variance is a usurpation of the governing body's power to zone, including:

[(1)] the size of the tract itself; [(2)] the size of the tract in relationship to the size and character both of the district in which it is located and the municipality as a whole; [(3)] the number of parcels into which it is anticipated that the tract will be subdivided if subdivision is part of the plan; and [(4)] the nature, degree and extent of the variation from district regulations which is sought.

[158 N.J. Super. at 413.]

Grand Summit sought a residential use in a commercial zone, a building that covered thirty-six percent of the lot where only thirty percent coverage was permitted and the structure's height to be seven stories approximating fifty-seven and one-half feet, where the zone allows three stories of thirty-five feet. The trial judge analyzed the Dover factors and noted Ridgefield offered nothing to show the impact of the proposed use by Grand Summit on its one and one-half acre tract substantially altered the character of the Borough's zone plan, either relative to the size and character of its zoning district or the municipality as a whole. Hughes v. Monmouth Univ., 394 N.J. Super. 193, 199-200 (App. Div.), certif. denied, 192 N.J. 599 (2007).

We agree with the trial judge's determination that the Board acted within its legislative grant of authority in providing an "individualized consideration of parcels and the grant of variances if warranted." We conclude, as did the trial judge, that Ridgefield failed to show the Board's action was akin to rezoning. At best, Ridgefield's challenge rests on a mere belief that the Board's decision was unwise or incorrect, bases that are insufficient to confer standing. Dover, supra 158 N.J. Super. at 409 (stating "whether [a board] has acted wisely or not, and whether it has acted correctly or not, are not matters which the governing body itself should be able to raise").

Absent proof that the placement of the project in its proposed location would have significant impact on the area's character, Ridgefield lacks standing to assert the Board exceeded the ambit of its authority. Accordingly, Ridgefield lacks standing to challenge the Board's grant of this use variance. Its complaint was correctly dismissed.

B.

Ridgefield also asserts standing is grounded on its obligation to enforce the municipal ethics ordinance in light of the asserted conflict of interest claim lodged against the Board's Chairman. We conclude this argument lacks merit and affirm substantially for the reasons discussed by the trial judge in his written opinion. R. 2:11-3(e)(1)(A), (E). We add these additional comments.

At the start of the November 20, 2006 hearing, Borough Councilman Robert Avery requested Nebbia recuse himself because Grand Summit and a related corporation, H&H Sales, Inc., provided political contributions to the Committee while Nebbia was its Treasurer. Specifically, H&H contributed $1000 to the Committee on May 10, 2004, and Grand Summit contributed $900 to the Committee on April 18, 2005. Nebbia consulted with Board counsel and, after being advised "no legal issue compelling [Nebbia] to step down from [considering] this application" was presented, declined Avery's request.

The public trust demands that government officials "'perform their duties free from any personal or pecuniary interests that may affect their judgment.'" Randolph v. Brigantine Planning Bd., 405 N.J. Super. 215, 226 (App. Div. 2009) (quoting Barrett v. Union Tp. Comm., 230 N.J. Super. 195, 200 (App. Div. 1989)). Disqualification is warranted where 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 MLUL provides in pertinent part that "[n]o member of the board of adjustment shall be permitted to act on any matter in which he [or she] has, either directly or indirectly, any personal or financial interest." N.J.S.A. 40:55D-69. "This conflict-of-interest provision codified the existing common law[.]" Hughes, supra, 394 N.J. Super. at 196 (quoting Care of Tenafly v. Borough of Tenafly, 307 N.J. Super. 362, 369 (App. Div. 1998). There are four situations identified as precluding action by board members:

(1) "Direct pecuniary interests," when an official votes on a matter benefiting the official's own property or affording a direct financial gain; (2) "Indirect pecuniary interests," when 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 a matter of great importance, as in the case of a councilman's mother being in the nursing home subject to the zoning issue; and (4) "Indirect Personal Interest," 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.

 
[Id. at 196-97 (quoting Wyzykowski v. Rizas, 132 N.J. 509, 524 (1993)).]

Additionally, the Local Government Ethics Law (Ethics Law), N.J.S.A. 40A:9-22.1 to -22.5, was enacted to bar public officials

such as a member of a board of adjustment, see Haggerty v. Red Bank Borough Zoning Bd. of Adj., 385 N.J. Super. 501, 514 (App. Div. 2006), from acting in any matter in which he or she "has a direct or indirect financial or personal involvement that might reasonably be expected to impair his[/her] objectivity or independence of judgment."

[Hughes, supra, 394 N.J. Super. at 197 (quoting N.J.S.A. 40A:9-22.5(d)).]

Finally, Ridgefield's ethics ordinance states "no member of the Board of Adjustment shall be permitted to act on any matter in which either he or she has either directly or indirectly any financial or personal interest." Ridgefield Code 390-73, -81.

The trial judge found no connection between the 2004 and 2005 contributions, made while Nebbia was the Committee's treasurer, and the instant approval rendered over eighteen months later. Moreover, Nebbia's role as treasurer, which included the ministerial duties of "receiv[ing] the checks, record[ing] them and deposit[ing] them," did not entail soliciting or directing the use of contributions.

Following our review, we agree with the trial judge's determinations. Under the circumstances presented, Nebbia's attenuated involvement did not constitute a disqualifying conflict or potential for conflict, which would impair his objectivity or independence of judgment as defined by the MLUL, the broader Ethics Law or the municipal ordinance. Wyzykowski, supra, 132 N.J. at 524.

III.

Lastly, we reject Ridgefield's contention that Grand Summit's current application, which followed two failed applications, was barred by the doctrine of res judicata. Ridgefield's argument suggests that since the Board had "previously found that such negative factors as height and prohibited use impair[ed] the zone plan and ordinance, it holds true for the subject application as well." As we noted, the trial judge rejected this argument, finding the doctrine inapplicable. He noted "[t]he question for the municipal agency on a second application . . . centers about 'whether there has occurred a sufficient change in the application itself or in the conditions surrounding the property to warrant entertainment' of the matter again." Allied Realty v. Borough of Upper Saddle River, 221 N.J. Super. 407, 414 (App. Div. 1987), (quoting Russell v. Tenafly Bd. of Adj., 31 N.J. 58, 66 (1959)), certif. denied, 110 N.J. 304 (1988).

"Res judicata is applicable to actions heard by a zoning board of adjustment." Russell, supra, 31 N.J. at 65. The fact that the same owner and same property are involved in each of two applications for a variance "is not alone sufficient to act as a bar." Ibid. A challenger "must also show the second application is substantially similar to the first, both as to the application itself and the circumstances of the property involved." Ibid. (citing Tzeses v. Bd. of Trs. of Vill. of S. Orange, 22 N.J. Super. 45, 54-55 (App. Div. 1952).

Grand Summit's 2004 submittal was for a mixed-use residential/commercial complex and the 2005 application was for a hotel. Consequently, a sufficient change in each application" exists, making res judicata inapplicable.

Affirmed.

 

Since 2004, Grand Summit had submitted two prior variance applications that were denied. Its first proposal was for mixed-use development consisting of ground-level commercial space retail and restaurant space, with sixty-five one, two, and three bedroom apartments on three floors, including a twenty percent set-aside for age-restricted housing. The site was zoned Office/Mid-Rise (O-5 MR), which did not permit mixed retail and residential uses. Ridgefield Code 390-39.4. In 2005, Grand Summit again sought variances for a five-story, one-hundred-twenty room hotel, accompanied by a two-story parking deck. The zoning had been modified to O-LR, which did not permit such a use.

During depositions, Nebbia admitted that in January 2007, he became aware Grand Summit had made a contribution of $100,000 payable to Ridgefield for the Ridgefield Library, which was made during the pendency of its application. Nebbia had no involvement in this donation, and the issue did not arise during the Board's hearings.

N.J.S.A. 40A:9-22.5(f) provides in pertinent part:

No local government officer or employee . . . or business organization in which he [or she] has an interest, shall solicit or accept any . . . political contribution . . . based upon an understanding that the . . . contribution . . . was given or offered for the purpose of influencing him [or her], directly or indirectly, in the discharge of his [or her] official duties.

However, this provision is inapplicable to:

the solicitation or acceptance of contributions to the campaign of an announced candidate for elective public office, if the local government officer has no knowledge or reason to believe that the campaign contribution, if accepted, was given with the intent to influence the local government officer in the discharge of his [or her] official duties.

[Ibid.]

(continued)

(continued)

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