INTELLECT REAL ESTATE DEVELOPMENT CO., L.L.C. v. MUNICIPAL COUNCIL BOROUGH OF BLOOMINGDALE et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0265-05T30265-05T3

INTELLECT REAL ESTATE

DEVELOPMENT CO., L.L.C.,

Plaintiff-Appellant,

v.

MUNICIPAL COUNCIL OF THE

BOROUGH OF BLOOMINGDALE

and CRAIG A. OLLENSCHLEGER,

MAYOR OF THE BOROUGH OF

BLOOMINGDALE,

Defendants-Respondents.

 
 

Submitted October 17, 2006 - Decided November 14, 2006-

Before Judges Weissbard, Payne, and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, L-4147-04.

Rubin & Connelly, attorneys for appellant

(A. Michael Rubin, on the brief).

Joseph V. MacMahon, attorney for respondents.

PER CURIAM

Plaintiff Intellect Real Estate Development Co., L.L.C., appeals from an Order of Judgment in its Prerogative Writ suit against defendants Municipal Council of the Borough of Bloomingdale and Craig A. Ollenschleger, the Mayor of Bloomingdale. After a one-day hearing on June 1, 2005, Judge Humphreys filed a written opinion on July 20, 2005, reflected in the Order of Judgment which: (1) declared null and void a February 1, 2005 resolution of defendant Municipal Council reversing the grant of a use variance to plaintiff by the Bloomingdale Board of Adjustment, because the Council violated the Open Public Meetings Act, N.J.S.A. 10:4-6 to -21 (OPMA); (2) remanded the appeal of the use variance to the Municipal Council to proceed anew; (3) declared moot plaintiff's challenge to the participation of the Mayor in the Council proceedings based on an alleged conflict of interest, the court having been advised that the Mayor would not participate in any further proceedings; and (4) declined to rule on other contentions advanced for reversing the Council's resolution.

On appeal, plaintiff presents the following arguments:

POINT I:

THE TRIAL COURT ERRED IN GRANTING A REMAND TO THE MUNICIPAL COUNCIL, INSTEAD OF VACATING THE COUNCIL'S DECISION AND REINSTATING THE DECISION OF THE BOARD OF ADJUSTMENT

A. General Principles

B. The Municipal Council Committed Multiple, Serious, And Substantial Violations Of The OPMA

C. In View Of The Multiple, Deliberate, And Substantial Violations Of The Open Public Meetings Act, The Trial Court Erred In Failing To Vacate The Municipal Council's Decision And Affirm The Decision Of The Board Of Adjustment

POINT II

THE GOVERNING BODY'S ACTION WAS TAINTED BY CONFLICT OF INTEREST

A. The Mayor Had A Disqualifying Conflict Of Interest Under Common-Law Principles

B. The Mayor Had A Disqualifying Conflict Of Interest Under The Borough Ordinance

C. The Mayor's Participation In The Proceedings On The First KLA Appeal Tainted The Municipal Council's Action And All Subsequent Proceedings

POINT III

THE AGREEMENT BY THE MAYOR NOT TO PARTICIPATE IN THE MUNICIPAL COUNCIL'S REHEARING OF THE SECOND KLA APPEAL ON REMAND DOES NOT MOOT THE ISSUE OF CONFLICT OF INTEREST

Having carefully considered plaintiff's contentions in light of the record and applicable law, we affirm substantially for the reasons set out by Judge Humphreys in his careful and trenchant opinion of July 20, 2005. We add the following comments.

We are not persuaded by plaintiff's argument that the appropriate remedy for the Council's violation of OPMA is to declare that the Board of Adjustment's decision granting the use variance receive automatic approval pursuant to the Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-17(c). Although he did not discuss the issue at any length, Judge Humphrey's citation to Polillo v. Deane, 74 N.J. 562 (1977), demonstrates that the argument was considered and rejected. The fashioning of an appropriate remedy for violation of OPMA is committed to the sound discretion of the trial court, given the "maximum flexibility" accorded to the trial courts to rectify "governmental action which falls short of the standards of openness prescribed for the conduct of official business." Id. at 579. As a result, our scope of review of a non-jury determination, such as that under review, is limited. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

We find no need to resolve whether the violations here were "inadvertent" or "deliberate," "technical" or "substantive," see Precision Indus. Design Co. v. Beckwith, 185 N.J. Super. 9, 18 (App. Div.), certif. denied, 91 N.J. 545 (1982). We cannot conclude that the Council's actions, that were found to be in violation of OPMA, were designed "to endlessly protract final determination of land development applications with the consequent result of undue harassment of developers and substantial economic prejudice to their legitimate development plans." Ibid. (quoting Manalapan Holding Co., Inc., v. Hamilton Twp. Planning Bd., 184 N.J. Super. 99, 108 (App. Div. 1982), rev'd, on other grounds, 92 N.J. 466 (1983)). Here, the September 14, 2004 Council meeting was duly noticed, all parties were heard and a decision was rendered that evening. While we do not minimize the violations, to mandate automatic approval under these circumstances would not, in our view, advance the public interest embodied in the automatic approval mechanism of the MLUL. Precison, supra, 185 N.J. Super. at 18-19. In effect, the medicine would be worse than the illness. The law gives the Council, not the Board of Adjustment, final say in these matters. To strip the Council of that power would be unwarranted.

Plaintiff's argument that the Mayor's conflict taints all past and future action of the Council is entirely lacking in merit. Even assuming the Mayor had a conflict, an argument we are inclined to accept, see Care of Tenafly, Inc. v. Tenafly Zoning Bd. of Adjustment, 307 N.J. Super. 362 (App. Div.), certif. denied, 154 N.J. 609 (1998); Barrett v. Union Twp. Comm., 230 N.J. Super. 195 (App. Div. 1989), plaintiff has provided no authority for the notion that such a conflict resulted in a pervasive and non-eradicable taint. To assume that the Mayor's influence will prevent the other Council members from exercising their own, independent judgment on remand is far too cynical for us to accept, and contrary to fundamental premises of our democratic society. As a result, the Mayor's voluntary removal from all future proceedings on this matter renders the issue moot, as Judge Humphreys found.

Affirmed.

 

The Borough's own Code, Ordinance Section 2.94.2(g), supports this view.

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A-0265-05T3

November 14, 2006