IN THE MATTER OF NEW JERSEY STATE PLANNING COMMISSION RESOLUTIONS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6589-02T36589-02T3

IN THE MATTER OF NEW JERSEY STATE

PLANNING COMMISSION RESOLUTIONS

NO. 2003- 03 AND NO. 2003-04

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IN RE NEW JERSEY STATE PLANNING A-1629-03T3

COMMISSION RESOLUTIONS NO. 2003-08

AND NO. 2003-09

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Argued: May 24, 2005 - Decided:

Before Judges Kestin, Fuentes and Eichen.

On appeal from the Department of Community Affairs, State Planning Commission.

Susan J. Kraham argued the cause for appellant Sierra Club, New Jersey Chapter (Rutgers Environmental Law Clinic, attorneys; Ms. Kraham, on the briefs).

Daniel P. Reynolds, Senior Deputy Attorney General, argued the cause for respondent State Planning Commission (Peter C. Harvey, Attorney General, attorney; Patrick DeAlmeida, Assistant Attorney General, of counsel; Mr. Reynolds, on the briefs).

Thomas F. Collins, Jr., argued the cause for intervenor Township of Sparta in A-1629-03T3 (Vogel, Chait, Collins and Schneider, attorneys; Mr. Collins, Richard Clark, and Thomas J. Molica, Jr., on the brief).

Laddey, Clark & Ryan, attorneys for respondent Sparta Township Planning Board in A-1629-03T3, join in the brief submitted on behalf of Township of Sparta.

PER CURIAM

These two appeals, which we have consolidated for the purposes of decision, present common legal issues. The focal question in both matters is whether the criteria of the New Jersey State Development and Redevelopment Plan (State Plan) for the designation of village or town centers are flexible guidelines to be applied at the discretion of the State Planning Commission (Commission) or whether they are mandatory requirements having the force and effect of administrative rules or regulations.

Four municipalities in Sussex County are involved: Sandyston and Montague in A-6589-02, and Sparta and Vernon in A-1629-03. The factual background regarding each municipality is particularized, but there are no significant disputes of fact. Appellant, the New Jersey Chapter of the Sierra Club, argues that, in all instances, the Commission's resolutions approving center designations reflect misapplications of the standards of the State Plan and were not supported by the facts of record; and that conflicts of interest were present that invalidated the Commission's actions. In A-6589-02, appellant advances an additional argument: that the Commission violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21.

In 1998, the municipalities submitted petitions to the Office of State Planning (OSP) to amend the New Jersey State Plan Policy Map (State map) and formally designate areas within each municipality as "centers" under the State Plan. We deal only with each proposal as ultimately amended and approved. The petitions sought approval for Layton Village Center and Hainesville Village Center in Sandyston, Montague Town Center, Sparta Town Center, and Vernon Town Center.

The Commission acted on two dates in 2003 to approve the designations sought. In each instance, the Office of Smart Growth (OSG) within the Department of Community Affairs (DCA) had recommended approval of modified plans. The ultimate approval process had begun with the Commission's Plan Implementation Committee (PIC) passing upon the OSG recommendations. PIC and Commission member John Eskilson, the director of the Sussex County Planning Department, abstained from the discussion and vote on each of the petitions by both the PIC and the Commission, save for the discussions of the Sparta and Vernon matters by the PIC in which he expressed a positive view of the petitions but did not vote.

I

The State Plan was adopted by the Commission in accordance with the State Planning Act (the Act), N.J.S.A. 52:18A-196 to -207. The State Plan, inter alia, created the State map, which identified areas for growth, limited growth, agriculture, open space, conservation, and embodied other appropriate designations.

The State map identifies five planning areas, distinct geographic and economic units within the State that share common characteristics: metropolitan (planning area 1); suburban (planning area 2); fringe (planning area 3); rural and rural/environmentally sensitive (planning areas 4/4B); and environmentally sensitive and environmentally sensitive/barrier islands (planning areas 5/5B). The municipalities involved in this appeal are in planning areas 4B and 5.

The State Plan's approach to managing growth is through the designation of centers to identify areas for development and redevelopment. Centers are defined as "ecologically designed compact forms of development and redevelopment that are necessary to assure efficient infrastructure and protection of natural resources[.]" State Plan, supra, at 8.

A center consists of center boundaries that "protect the [e]nvirons" and "provide advance knowledge . . . about where development is expected," a core as "the commercial, cultural, and civic heart of the center," and neighborhoods. Id. at 235-37. In Planning Areas 4 and 5, "the [c]enter is the area within which infrastructure services are planned and provided to contain the level of projected growth." Id. at 187. As we have indicated, this appeal involves only town and village centers.

Town centers are "[t]raditional centers of commerce or government . . . with diverse residential neighborhoods served by a mixed-use core offering locally oriented goods and services." Id. at 230. The State Plan's criteria for town centers provide for "a population of more than 1,000 but less than 10,000; . . . a gross population density of more than 5,000 persons per square mile; . . . a minimum gross housing density of three dwelling units per acre; . . . a land area of less than two square miles; and . . . a jobs-to-housing ratio of 1:1 to 4:1." Id. at 244. A town center should be "served by an arterial highway and/or public transit." Id. at 244.

Village centers consist of "[p]rimarily residential places that offer a small core with limited public facilities, consumer services and community activities." Id. at 230. The State Plan's criteria for village centers provide that they should have "land area[s] of less than one square mile; . . . a minimum gross population density of 5,000 people per square mile . . . and a minimum gross housing density of three dwelling units per acre; and [that] existing and [projected to] 2020 populations should not exceed 4,500 people[.]" Id. at 246. The State Plan provides that a village center should be in reasonable proximity to an arterial highway.

The State Plan embodies a plan endorsement process for the designation of centers. If a municipality's plan is endorsed, it will be eligible for certain priority assistance and incentives. As of March 2001, sixty-four centers had been designated, and more than an additional two hundred had been proposed, including the centers at issue in these appeals.

II

Each of the four proposals before us in this appeal was based on particular characteristics of the area involved. Each municipality made an effort to fit its proposal into the standards of the State Plan or to justify a departure from those standards.

A. SANDYSTON (Layton Village and Hainesville Village Centers)

Sandyston is a predominantly rural municipality with 42.5 square miles of land. In 2000, it had a population of 1,825. Its projected population for the year 2020 is 2,136.

About two-thirds of Sandyston is federally- or State-owned property in the Delaware Water Gap National Recreation Area and Stokes State Forest or land under the jurisdiction of the State Division of Fish and Wildlife. These recreational and open space areas are important parts of a regional, multi-state, and national tourism industry.

The balance of the land in Sandyston includes approximately 9,000 privately-owned acres that run through the center of the municipality, separating the federal lands on the west from the State lands on the east. Both Layton and Hainesville, the proposed village centers, are located in this swath. Twelve percent of the municipal area is devoted to farming, orchards, and woodlands, and six percent is devoted to residential uses.

Primary access into and out of Sandyston is via US Route 206, a major arterial highway. The municipality is not served by public transportation. The nearest rail station is in Port Jervis, New York, which has rail service terminating in Hoboken, New Jersey, two hours away. There are no public water or wastewater systems in Sandyston, only individual wells and septic systems.

Population density in Sandyston is forty-three persons per square mile. Growth has been very slow in the municipality, a trend likely to continue, as the projected population density for the year 2020 is fifty persons per square mile. Most of the residents live on farms or in villages and hamlets. Although relatively new buildings and modifications of older structures exist in Layton and Hainesville, both retain the atmosphere of rural villages.

Sandyston proposed the two village center designations in State Planning Areas 4B and 5 in order to aid these historic and rural villages in obtaining infrastructure financing for roads, a bridge, municipal facilities, home rehabilitation grants, and loans for low and moderate income households. The municipality wishes "to preserve the serenity and rural character of [its] landscape and of its villages and hamlets, . . . [to] provid[e] good access and services to visitors to the national and state lands, [and to] assur[e] . . . the orderly growth of infrastructure in the privately owned portion of the Township."

Layton contains a post office, some municipal offices, a tavern, and some housing. Planning analysts in the OSG, in their report to the PIC, noted:

The future for this center is based on small-scale infill and redevelopment opportunities that would enable this area to serve as a tourism hub; a gateway to the Delaware National Recreation Area. The town envisions a bed & breakfast, a luncheonette and perhaps a small country general store[; and] approximately 24-48 new housing units can be expected within the village in the next twenty years.

Layton occupies .43 square miles of land. Its 1990 population was 222, with seventy employed. There were 87 dwelling units in Layton, or .32 per acre, and its job-to-dwelling-unit ratio was 0.8:1. Layton's 2000 population was 193 and there were thirty-eight jobs in the community. Projected population for the year 2020 was 310.

Hainesville contains a general store, some service industries, and housing. The OSG planning analysts opined that "new growth and development will be small-scale and limited to select infill sites based on septic suitability." According to them, approximately forty new homes and an additional 140,000 square feet of commercial or retail space could be accommodated in this village.

Hainesville occupies .45 square miles of land. Its 1990 population was 205, with forty-four employed. There were seventy-seven dwelling units in Hainesville, or .27 per acre, and its job-to-dwelling-unit ratio was 0.6:1. Hainesville's 2000 population was 220, with thirty-one jobs in the community. The population projected for the year 2020 was 310.

B. MONTAGUE

Montague is located where the northwestern corner of New Jersey intersects with the northeastern border of Pennsylvania and the southern border of New York. It occupies 44.6 square miles and, in 2000, had a population of 3,412. Historically, growth has been very slow in Montague, a trend that was expected to continue.

The Kittatiny Mountain Range and the Delaware River provide the foundation for the town's tourism industry. High Point State Park forms the western boundary of the town.

Two-thirds of Montague is comprised of federal- and State-owned land, specifically the Delaware National Recreation Area and High Point State Park. Other tracts are managed by the New Jersey Division of Fish and Wildlife. The Nature Conservancy owns about 1,000 acres. The proposed town center of Montague is located within the band of private land that is situated between these publicly-owned and conserved lands.

According to Montague's petition, most of the private land in the municipality consists of large tracts of vacant land. Much of the existing housing is situated largely within a residential development known as High Point Country Club, which initially was to be within the boundaries of the proposed town center. "Traditionally, the residents of the Township have been located on farms scattered throughout the community, with small groupings of homes having been built in areas like Montague and Tri-State, the early villages and hamlets of the Township."

Montague is served by US Route 206, which crosses into Pennsylvania; the Route 23 corridor, which is substantially developed with fast food businesses and other highway services; and some county roads. There is no public transportation and the nearest rail station is in Port Jervis, New York. No public water or central wastewater treatment facilities exist in Montague.

The proposed town center, located in State Planning Areas 4B and 5, was to include a mix of civic, retail, office, and residential uses. Fifty to one hundred new housing units could be accommodated within the proposed center, along with about 900,000 square feet of additional neighborhood and highway commercial retail uses.

Montague's petition for a town center designation was intended to help the municipality meet and implement its 1994 Master Plan objectives to preserve the rural character and integrity of the community while fostering growth and development. The designation was expected to assist in obtaining infrastructure funding, such as for road improvements, stormwater drainage improvements, development of central water or wastewater treatment facilities, development of a revolving loan program for local businesses, and a housing rehabilitation loan program. "[A] gradual and logical growth pattern is envisioned by the Township . . . through the year 2010," rather than any "dramatic growth."

The proposed Montague Town Center comprised about 2.6 square miles of land. Its 1990 population was 2051, its 1998 population was 2134, and its 2000 population was 1688, with 278 persons employed. As of 2000, there were 873 dwelling units, or .52 per acre, and its job-to-housing ratio was 1:3.1. Its projected population for the year 2020 was 2330.

C. SPARTA

Sparta Township occupies thirty-nine square miles and lies in the southeastern portion of Sussex County, about forty-five miles from New York City. It is located in Planning Areas 4, 4B, and 5 within the Wallkill River Watershed Management Area. It is a residential community with a population of about 18,000 who reside in a variety of housing types. Lake Mohawk is an integral part of the community.

As originally proposed, the Sparta town center included all of the Lake Mohawk community. The Township later drew up new boundary lines that significantly reduced the amount of land and population to be included in the center designation. As amended, the proposed town center comprised 1.007 square miles of land, had a population of 1,508, 520 housing units (or .807 per acre), 1650 jobs, and a jobs-to-housing ratio of .32. The projected population for 2020 is 2,436.

Sparta sought "waivers" of the State Plan criteria for area, gross population density, and gross housing density. One justification for the waiver was that the proposed town green and preservation of wetlands and steep sloped areas increased the land area and decreased the density potential. The town green apparently comprises thirty-seven acres, of which seventeen would be permanently preserved as open space.

According to the Township, the Sparta town center was intended to "provide opportunities for planned growth and redevelopment in the existing historic commercial area and adjacent lands to meet the service, fiscal and housing needs of Sparta Township while preserving, enhancing and protecting the historic rural character and natural resources of the area."

D. VERNON

Vernon Township occupies 68.3 square miles. It consists of "a very well-developed recreational area[,] . . . an expansive valley[,] . . . substantial mountains[,] . . . and unmatched vistas." "It is part of several geographic regions, including the Appalachian Highlands . . . and the New Jersey Skylands." "Over forty-six percent of the Township is in [f]ederal, State, or other open space protection/conserved ownership." It is located in Planning Areas 4, 4B, and 5. Less than 30% of the Township is developed and 20% is devoted to active farming.

The Township consists of farms, hamlets, lake resort communities, isolated pockets of commercial development, newer subdivisions, recreational attractions, and "unique resort communities." Newer development in the Township has begun to sprawl in pockets.

The Township sees a need to develop a commercial center to support recreational activities while at the same time preserving scenic vistas. It considers several goals to be important, including:

Maintaining the characteristics of a rural and environmentally-sensitive area while accommodating economic growth[;]

Providing a concentrated center to absorb the effects of increased agri-eco tourism in the region[;]

Maintaining some of the rural/mountain character within the community development boundary[;]

Acquiring and preserving open space and farmland in the environs to ensure that new development is directed to the center[;]

Providing local jobs and housing to complement the regional draw of the resorts.

The Township's initial, more comprehensive petition was amended to request town center designation with only two core areas, Vernon and Mountain Creek. The amendment significantly reduced center boundaries based on environmental considerations, and placed the center solely in Planning Area 5. The envisioned result was that development, especially in the environs, would be very limited due to natural features and the protected lands of the Township.

This proposed Town Center would comprise 1.63 square miles of land with a population of 519; 210 housing units, i.e., .20 per acre; 2,240 jobs; and a job-to-housing ratio of 10.67. Based on the town center criteria in the State Plan, these statistics would fall short in terms of population, population density, housing units, and housing density, and would exceed the designated jobs-to-housing ratio.

III

The OSG made recommendations to the PIC with respect to the four proposals. In each instance, the OSG recommended approval in accordance with a revised planning and implementation agenda (PIA).

A. SANDYSTON

The OSG noted that Sandyston's petition bore a focus on ecotourism. The OSG anticipated that the proposed Layton Village Center would meet all State Plan guidelines by the year 2020, with the exception of gross housing density and the jobs-to-housing ratio, and that the proposed Hainesville Village Center had met all State Plan guidelines with the exception of gross housing density and the jobs-to-housing ratio.

The OSG recommended that the boundaries of both centers "be reconfigured based on the presence of exceptional resource value wetlands and the proximity of the center[s] to . . . a trout production and category 1 stream." In an effort at avoiding potential conflicts, the OSG staff had worked closely with the Department of Environmental Protection (DEP) to coordinate the center boundaries. Based on its own build-out analysis, the OSG concluded "that the impact of present zoning on the environs would be minimal . . . . [and] that the capacity of the natural environment to absorb the modest amount of new growth will be adequate."

In recommending that both proposed Sandyston centers be approved with amended boundaries, the OSG suggested, inter alia: a "critical environmental sites" (CES) designation around all sensitive environmental resources; that the PIA be amended to address such features as design standards, water supply, stormwater plans, historic preservation, and agricultural concerns; that Sandyston continue to participate in the development of the Sussex County Strategic Plan; and that the Township pursue certification from the Council on Affordable Housing (COAH).

B. MONTAGUE

With respect to Montague's petition, the OSG noted many similar concerns. That application also focused on ecotourism. The OSG determined that all State Plan criteria for the town center had been met, and that population density was "'fine' in terms of less than 5,000 . . . people per square mile." Housing density appeared problematic, however.

Based on input from the DEP, the OSG recommended that the High Point Country Club residential development, as well as an existing neighborhood to the west of that development, be excluded from the proposed Montague Town Center. The center boundaries "should be scaled back to provide a clear, identifiable town center area to include only a portion of the area originally proposed."

According to the OSC, this limitation would enable Montague "to focus [its] future planning efforts for that portion of the original center found along Route 206. The existing retail business and future development will benefit from a planning and design approach to this area. This area is an important gateway to New Jersey from Pennsylvania." Any development would have to be coordinated with the New Jersey Department of Transportation.

Premised on its build-out analysis, the OSG concluded that the impact of present zoning on the environs would be minimal and that the capacity of the natural environment to absorb the modest amount of new growth would be adequate. The OSG estimated that the redesignation of the proposed boundaries would reduce the numbers in Montague's initial proposal by two-thirds, but it did not actually recalculate those numbers or compare them to the designation criteria.

The OSG recommended approving the Montague Town Center with amended boundaries and a CES designation around all sensitive environmental features. It also recommended amending the PIA to reflect stormwater, water supply, and agricultural concerns. In addition, OSG proposed that Montague should pursue COAH certification, and should conduct "visioning sessions" that would enable it to develop design standards that would support a "mixed-use pedestrian scale community."

C. SPARTA

The OSG also recommended Sparta's town center proposal for approval with certain recommended modifications having to do with water supply, stormwater control, transportation, and historic preservation.

Regarding growth management mechanisms, the recommendations also included, in addition to tools considered by the municipality, "non-contiguous parcel clustering . . .as an option to send density or other development potential into the town center; [and that] the Township . . . set a goal that 25% of growth that would otherwise occur in the environs should be transferred into the town [c]enter." (Emphasis omitted.) This goal was predicated on the Township's ability to secure additional sewer capacity. The OSG noted that the Township had secured sufficient wastewater treatment capacity; that the DEP had issued Wastewater Management Plan approvals and sewer extension permits; and that it appeared the capacity of the environment to absorb the amount of new growth would be adequate.

D. VERNON

The OSG also recommended that the Vernon Town Center be approved subject to certain recommendations. It had determined that the proposed center would protect the Township's most valuable asset while focusing growth, tourism, and economic development within the concentrated boundaries of the center. Without center-based planning, the existing highway corridors in the Township would be threatened by strip commercial development patterns. The proposed town center would function as a compact mixed-use community. Its boundaries would be shaped by the natural features of the land and its housing would be diverse and varied.

The OSG, which had worked closely with the DEP, also recommended that expanded sewer service would be required to serve the anticipated development. The DEP had determined that there was sufficient water for the Township's current and projected needs. The OSG's recommendations touched on such issues as streams, wetlands, buffers, traffic, and historic preservation. As with Sparta, the OSG recommended non-contiguous parcel clustering to send population density into the center with a goal that 25% of the growth in the environs would be transferred to the center.

IV

As to each of the four petitions, the PIC agreed with all of the OSG's recommendations and recommended that, as revised, they be approved. The Commission's approvals for Sandyston and Montague occurred on April 23, 2003. The resolutions of approval for Sparta and Vernon were adopted on July 16, 2003.

Resolution No. 2003-03, inter alia, "approv[ed] the amendment of the State Plan Policy Map for the purpose of designating two portions of the Township of Sandyston as the Layton and Hainesville Village Centers and delineating a Critical Environmental Site within the Layton Village Center." Resolution No. 2003-04, approved the amendment of the State Plan Policy Map "for the purpose of designating a portion of the Township of Montague as the Montague Town Center, . . . with a revised Center Boundary as recommended by the Department of Environmental Protection and the Office of Smart Growth." Resolution No. 2003-08 declared that the Sparta Town Center proposal, as amended, substantially met the center design guidelines of the State Plan, and was approved subject to the Township's execution of its plans in accordance with the State Plan and the revised PIA. The approval incorporated a recommendation made by the DEP that the Township conduct a "new build-out analysis to determine the accuracy of projected wastewater flows to be generated by the Sparta Town Center within eighteen months." The resolution provided that the town center designation "shall automatically expire eighteen months from the date of designation" if the Township did not "complete the build-out analysis based on current zoning and reconcile the analysis with the Township's allocated wastewater flows." If the build-out analysis "shows that projected flows exceed the current allocation for the Township, the town center designation will be reduced to reflect the limits of the Township's current wastewater allocation[.]"

Resolution No. 2003-09 approved Vernon's proposal as amended. The Commission found that the proposed town center substantially met the center design guidelines of the State Plan. The Vernon Town Center was approved subject to the recommended amendments to the PIA, especially those made by the DEP that the Township "conduct a new build-out analysis to determine the accuracy of projected wastewater flows to be generated . . . and an environmental analysis . . . within eighteen months." Vernon Township was also required to implement immediately the groundwater monitoring program required by the DEP. The Town Center designation was to expire automatically in eighteen months if the Township did not complete the required build-out analysis, did not complete the required environmental analysis, or did not implement the required groundwater monitoring program. If the build-out analysis showed that projected flows exceeded the current allocation for the Township, or if the constraints indicated by the environmental analysis were more limiting, then the Town Center boundaries would be reduced accordingly. In addition, the Township was required to address other elements in its PIA that were critical to water quality and supply in the Wallkill Valley, especially stormwater and septic system management plans.

All the resolutions of approval required each municipality "to carry out its plans in accordance with the goals, strategies and policies of the [State Plan] and in accordance with its revised [PIA]." The Commission also expressly provided that its action did not exempt property owners and developers from securing all necessary approvals required by federal, state, county, or local agencies, nor did it override the terms and conditions governing such approvals.

We note some similarities and differences among the four municipalities and their approved center plans. All four townships involved are located in Sussex County and consist of environmentally sensitive planning areas. With the possible exception of Sparta, all contain large masses of federally and state protected land. The quality and intensity of any proposed development is, thus, significantly restricted.

The proposed centers in all four townships failed to meet all of the criteria set forth in the State Plan, with the most significant shortfall being in the population density standard. Even Vernon, the township with the largest population among the four, failed to meet the minimum requirement of 5,000 people per square mile for its town center. Nevertheless, with the exception of Sparta, each township had established eco-tourism as one of its primary goals in seeking center designation. We note that part of Vernon's tourism trade was linked to a commercial recreational center, as distinguished from the natural parks and forests located in Montague and Sandyston.

Another similarity between the four instances is the extent to which the Commission met with and received input from other State and regional agencies, especially the DEP. Inter-agency cooperation is envisioned and encouraged by the Act as a means of taking into account various environmental and regional planning considerations. N.J.S.A. 52:18A-196e.

A significant difference among the plans is that the center designations granted to both Sparta and Vernon were expressly made conditional upon certain requirements being met within eighteen months. The center designations would automatically expire if the conditions were not met. Furthermore, the Commission reserved the right to reduce the boundaries of the centers in order to satisfy environmental needs.

V

In challenging the Commission's actions, appellant argues that the resolutions must be invalidated because they violated the Commission's own regulations, because they violated State Plan criteria, and because any growth in the proposed centers that would satisfy State Plan standards would seriously impair the area's natural resources and violate environmental constraints. Clearly, the designations of the centers at issue here did not meet all criteria of the State Plan. The question is whether any departures that may have occurred require invalidation of the agency action.

The scope of appellate review in matters such as these is narrow. As with all appeals from determinations made by administrative agencies, judicial review is restricted to three inquiries. In all matters, we inquire "whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; [and] . . . whether, in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors." In re Musick, 143 N.J. 206, 216 (1996). In quasi-judicial matters, we inquire, also, whether there was substantial evidence in the record to support the findings on which the agency's decision was based. Ibid. In reviewing quasi-legislative exercises, we inquire whether the agency action is well supported by the administrative record developed and is free of arbitrariness, caprice, or unreason. See, e.g., In re Adopted Amendments to N.J.A.C. 7:7A-2.4, 365 N.J. Super. 255, 265 (App. Div. 2003).

Reviewing courts should give substantial deference to the interpretation given to a statute by the agency charged with enforcing it and to the agency's expertise in cases involving technical matters within its special competence. See In re Authorization for Freshwater Wetlands Gen. Permits, 372 N.J. Super. 578, 593 (App. Div. 2004); In re Adopted Amendments to N.J.A.C. 7:7A-2.4, supra, 365 N.J. Super. at 264. Such deference is due because of the specialized expertise agencies possess to deal with technical matters and "is especially appropriate when new and innovative legislation is being put into practice," In re Adopted Amendments to N.J.A.C. 7:7A-2.4, supra, 365 N.J. Super. at 264, or when the agency "has been delegated discretion to determine the specialized and technical procedures for its tasks." In re Authorization for Freshwater Wetlands Gen. Permits, supra, 372 N.J. Super. at 593 (quoting Newark v. Natural Res. Council, Dep't of Envtl. Prot., 82 N.J. 530, 540, cert. denied, 449 U.S. 983, 101 S. Ct. 400, 66 L. Ed. 2d 245 (1980)).

In general, administrative agencies are bound to follow their own rules and regulations. See In re CAFRA Permit No. 87-0959-5, 152 N.J. 287, 308 (1997). "Because administrative regulations that apply to the regulated public have the force and effect of statutory law, an administrative agency ordinarily must enforce and adhere to, and may not disregard, the regulations it has promulgated." County of Hudson v. Department of Corrections, 152 N.J. 60, 70 (1997). Although an agency has the inherent power to waive de minimis violations of objective standards or to relax procedural rules if no substantial rights are prejudiced, it cannot waive regulations that enforce important policy determinations. See SMB Assocs. v. Department of Envtl. Prot., 264 N.J. Super. 38, 58-59 (App. Div. 1993), aff'd, 137 N.J. 58 (1994). An analysis of the underlying statutory and regulatory framework is always necessary to understand how these principles of appellate review apply in a particular instance.

The State Planning Act directs the Commission to develop the State Plan "for use as a tool for assessing suitable locations for infrastructure, housing, economic growth and conservation." N.J.S.A. 52:18A-196c. The Legislature has declared it in the public interest to encourage development and economic growth in locations "well situated with respect to present or anticipated public services and facilities, giving appropriate priority to the redevelopment, repair, rehabilitation or replacement of existing facilities and to discourage development where it may impair or destroy natural resources or environmental qualities that are vital to the health and well-being" of the State's citizens. N.J.S.A. 52:18A-196d.

The Act vests the Commission with the power to adopt the State Plan, "which shall provide a coordinated, integrated and comprehensive plan for the growth, development, renewal and conservation of the State and its regions and which shall identify areas for growth, agriculture, open space conservation and other appropriate designations[.]" N.J.S.A. 52:18A-199a. The Act requires the State Plan to be "designed to represent a balance of development and conservation objectives best suited to meet the needs of the State." N.J.S.A. 52:18A-200. Among other things, the State Plan is to "[p]rotect the natural resources and qualities of the State . . . [and] [p]romote development and redevelopment in a manner consistent with sound planning[; c]onsider input from State, regional, county, and municipal entities[; and] [i]dentify areas for growth, limited growth, agriculture, open space conservation and other appropriate designations that the Commission may deem necessary[.]" N.J.S.A. 52:18-200a to d.

The Act establishes the Office of State Planning within the Department of the Treasury to "assist the Commission in the performance of its duties[.]" N.J.S.A. 52:18A-201b. The Act also authorizes the Commission to adopt rules and regulations to carry out its purposes. N.J.S.A. 52:18A-203. These regulations, known as the "State Planning Rules," were originally promulgated as N.J.A.C. 17:32-1.1 to -8.7. Effective July 15, 2003 (i.e., after the resolutions at issue here were approved), the rules were recodified as N.J.A.C. 5:85-1.1 to -8.7 in order to reflect the transfer of duties from the Department of the Treasury to the DCA, among other reasons. The OSG, within the DCA, serves the same functions as the OSP. It staffs the Commission and provides planning and technical assistance to it. N.J.A.C. 5:85-1.4.

The State Planning Rules in effect prior to the recodification provided that petitions by municipalities to amend the State Map were to be submitted to the Director of the OSP. N.J.A.C. 17:32-8.5(a). According to N.J.A.C. 17:32-8.5(e), although the Commission is permitted, at its discretion, to appoint a subcommittee to hear and review petitions, only the Commission is allowed to dispose of a petition, except as set forth in N.J.A.C. 17:32-7.5(f). The latter subsection, in turn, provides that the Director of the OSP "may" disapprove petitions to amend the State Map if the petition "requests an amendment that conflicts with the criteria set forth in the State Development and Redevelopment Plan." N.J.A.C. 17:32-8.5(f)(4).

In its first argument, appellant contends that the Commission failed to follow its own "regulations." The argument does not refer to the State Planning Rules, however; rather, it refers to the criteria contained in the State Plan itself. That is, appellant contends that the "State Plan constitutes an administrative rule that binds the State Planning Commission[,]" and that former N.J.A.C. 17:32-8.5 of the State Planning Rules "require compliance with the State Plan criteria." Appellant goes on to set forth the ways in which the petitions here did not meet those criteria.

We have repeatedly held, albeit in other contexts, that the State Plan has no regulatory effect and that neither it nor the State Map should be referenced or applied in that manner. In re Protest of Coastal Permit Program Rules, 354 N.J. Super. 293, 356-57 (App. Div. 2002); Mount Olive Complex v. Township of Mount Olive, 340 N.J. Super. 511, 544 (App. Div. 2001), remanded on other grounds, 174 N.J. 359 (2002); In re Adoption of Amendments to N.J.A.C. 5:93-1.3 and 5:93-5.3, 339 N.J. Super. 371, 391 (App. Div. 2001); New Jersey Builders Ass'n v. Department of Envtl. Prot., 306 N.J. Super. 93, 96-97 (App. Div. 1997). Rather, the State Plan is a policy guide for State and local agencies to use when exercising their delegated authority. It is a tool for furthering the goal of planning consistency and helping to coordinate planning at all levels of government. In re Protest of Coastal Permit Program Rules, supra, 354 N.J. Super. at 357; In re Adoption of Amendments to N.J.A.C. 5:93-1.3 and 5:93-5.3, supra, 339 N.J. Super. at 391; New Jersey Builders Ass'n, supra, 306 N.J. Super. at 97.

The State Plan itself acknowledges that it is not a regulation, but a policy guide. It is "a set of recommendations to the people of New Jersey and their elected representatives." State Plan, supra, at 276. It "creates a vision or design for the future that is based on the mandates of the State Planning Act. The provisions of the Plan and its supporting documentation constitute an agenda and guide for the State to make the vision or design become a reality." Id. at 276-77. The State Plan "is not a substitute for functional state agency plans or local master plans . . . . [It] provides a context, a vision and a process within which these more specific plans can be developed and implemented to achieve commonly derived goals." Id. at 277.

Moreover, the criteria for designating centers are intended to be applied "flexibly," as a "general guide." Id. at 231, 244. "Local conditions may require flexible application of the criteria to achieve the policy objectives of the planning area." Id. at 244, 246.

Appellant makes discrete arguments regarding each petition's compliance with the designation criteria. Appellant concedes that, in some respects, the criteria were satisfied; in other respects, it points out how they were not satisfied; and, in still other respects, appellant suggests that, while literal compliance occurred, a proper exercise of judgment should have led to a non-compliance evaluation as a matter of policy. The Commission, as respondent, does not address any of these specific arguments, but instead relies on the non-binding nature of the criteria and the fact that they must be applied "flexibly."

The OSG, in recommending approval of all the petitions, suggested there were adequate policy reasons within the parameters of the Act and the State Plan for granting the approvals sought even in the absence of total or literal compliance with all criteria. We respect the Commission's acceptance of these recommendations.

In discharging our responsibility to defer to the expertise and policy implementation discretion of the agencies charged by law with the responsibility to administer this subject matter field, we are bound to recognize the State Plan's concept of planning for development organized around centers. That approach is based on the rationale that the result will likely be lower public service costs, more efficient use of infrastructure, greater community cohesion and identity, and protection and reduced consumption of natural resources. Id. at 6, 8. While the State Plan expressly promotes the benefits of higher density neighborhoods in centers, "recommending a minimum average density of 5,000 people per square mile for regional centers, towns and villages[,]" id. at 9, it also anticipates that "[g]ood planning and design create higher-density neighborhoods that are convenient, healthy, and livable[.]" Ibid.

The State Plan also recognizes, specifically with regard to Planning Areas 4B and 5, that "[t]he recreation and tourism sector, a growing portion of New Jersey's economy," depends on "the services that rural towns and villages can provide for visitors." Id. at 206-07; see also id. at 215-16. Development in centers is especially important to absorb growth in cost-effective ways that can minimize the impact on the area's rural features and that can maintain the environs as open land. Id. at 208-209; 217.

Applying these considerations, it becomes apparent that special considerations apply to two of the municipalities involved in this appeal. Most of the land area in Sandyston and Montague is comprised of federal- and state-owned or protected lands that will never be eligible for development and that command a high level of protection. Any development that may occur must, of necessity, be confined to the relatively small swaths of land situated outside of those special areas. The agencies involved, as a matter of general public policy, and in these specific instances, appear committed to achieving a realistic and workable result that takes into account the interests of the environment and the desire to consolidate efficiencies of infrastructure through minimum population density requirements.

Although it is sensible to argue that there should not be any development in such close proximity to environmentally protected national and state forests and parks, the State Plan's policy goal of encouraging tourism and promoting the recreational use of such lands suggests otherwise. Id. at 127, 145. The petitions of the municipalities impacted by these considerations focus on the ecotourism effect and propose development that would be limited to minimal services catering to tourists.

It is not a court's place to choose between competing policy goals or plans of implementation. See In re Distribution of Liquid Assets, 168 N.J. 1, 10-11 (2001). As long as the means chosen by the legislatively designated agencies are reasonably in pursuit of public policy objectives and are within the powers delegated, we are obliged to defer to the "agency's expertise and superior knowledge of a particular field." Greenwood v. State Police Training Center, 127 N.J. 500, 513 (1992). Viewed in this light, the designation criteria for town and village centers must be seen only as articulated means to achieving broader ends, not as ends in themselves. It is clear that the criteria were not intended to be inflexibly applied. They were designated as guidelines only, as is the State Plan itself. Although the Commission "may" disapprove a petition to amend the State Map if it conflicts with State Plan criteria, N.J.A.C. 17:32-8.5(f)(4) (the regulation in effect at the time of the decisions herein), or may recommend approval of petitions that are "consistent" with the State Plan, N.J.A.C. 5:85-8.6(a) (the current regulation), this does not mean, as appellant argues, that petitions must necessarily be disapproved when one or more criteria in the State Plan are not met. We must respect the agency's choice to foster other equally significant policy objectives articulated in the State Plan.

To invalidate action taken by the agency charged by statute with the creation, development, and interpretation of the State Plan would constitute impermissible judicial intervention in this highly complex and technical area. This is not a simple case of an agency refusing to follow its own mandatory rules. It is one in which the agencies involved have applied their expertise and special insights to reach a result promoting the State's policies as declared by the Legislature.

We also reject appellant's argument that the agency action must be invalidated because the Commission failed to insure that the area's natural resources would not be impaired or that environmental constraints would not be violated. Designation of a center under the State Plan does not mean that development can or will occur without regard to state and local land use, environmental considerations, and other planning needs. Any development that does occur in Sandyston, Montague, Sparta and Vernon will be required to meet all terms and conditions for approval, including those generated by other agencies with a legitimate subject matter interest.

VI

Appellant also contends that the Commission denied the public the right to an open process for governmental decision-making because it relied on documents not made available to the public, and that it otherwise violated the OPMA. We disagree.

In A-6589-02, appellant cites to the fact, for example, that when the OSG recommended changes to Sandyston's initially proposed center boundaries, it did so ostensibly to save from adverse impact significant areas of wetlands and properties with threatened endangered species. The goal, according to the OSG representative, was to respect the environmental resources of these areas, including a category-one trout production stream. Appellant claims, however, that "no documentation was provided" and that "there is no information in the record that shows that merely moving the center boundary adequately protects these resources."

Appellant later moved to settle the record on appeal and requested documents pursuant to the Open Public Records Act, N.J.S.A. 47:1A-1 to -13. In response to that request, appellant received several e-mail communications between staff members of DEP and the OSG dealing with issues regarding center boundaries and the need to protect environmental resources.

According to appellant, these e-mails neither answered any of the questions raised nor provided any underlying information. Moreover, they reflected "frustration on the part of staff members who appear to believe that not enough time was spent carefully reviewing these concerns," and "a process of boundary shifting based not on science and environmental data but on the wishes of political officials." It seems clear that appellant was not provided with all documentation underlying DEP's and OSG's decision to recommend modification of the center boundaries, but the e-mails that were given over do not bear out the allegations that an insufficient amount of time was spent analyzing the petitions or that the recommendations made were motivated by improper influences.

There is nothing untoward in OSG's consultation with DEP. The Act provides for a "cooperative planning process that involves the full participation of State, regional, county and local governments . . . [toward the end of] enhanc[ing] prudent and rational development, redevelopment and conservation policies and the formulation of sound and consistent regional plans and planning criteria." N.J.S.A. 52:18A-196e. Further, the Act empowers the Commission to "call to its assistance any personnel of any State agency, regional entity, or county, municipality or political subdivision thereof as it may require in order to perform its duties." N.J.S.A. 52:18A-204. The Commission may also "[d]evelop and promote procedures to facilitate cooperation and coordination among State agencies . . . with regard to the development of plans, programs and policies which affect land use, environmental, capital and economic development issues." N.J.S.A. 52:18A-199c.

Neither the Act nor the regulations provide that the documentation relied on by other state agencies when providing assistance to the Commission must be furnished to interested parties. However, the regulations do provide that all meetings held by the Commission or one of its subcommittees shall be conducted in accordance with the OPMA. N.J.A.C. 17:32-8.5(h) (currently N.J.A.C. 5:85-1.6(a)).

Appellant asserts in A-6589-02 that, despite the requirements of the OPMA as made applicable by regulation, minutes of a critical PIC meeting were not made available to the public, that the tapes of the meeting were not transcribed until after the first notice of appeal was filed, that the minutes are laden with gaps marked "inaudible," and that the minutes end halfway through the discussion of the Montague petition. Appellant argues that these deficiencies constitute violations of the OPMA and require invalidation of the resolutions because "[n]either the members of the Commission nor the public had any way of knowing what had occurred at the PIC meeting or what the basis was for the recommended revisions."

At the April 23, 2003 Commission meeting held following the PIC's recommendations in the Sandyston and Montague matters, appellant's representative was present and expressed environmental concerns raised by the petitions and other matters the Commission was considering. The Chairman of the Commission responded that these types of concerns "should be brought up at the Plan Implementation Committee." Another Commission member noted that these concerns had been "discussed and resolved" at the PIC meeting and that the DEP "did an intensive job of revising the [Hainesville] center boundary." Appellant claims that the record does not reflect any of this intensive work.

The State concedes that a verbatim transcript of the PIC meeting of March 26, 2003 was not prepared until after the first notice of appeal was filed and that that transcript was incomplete because the audiotape failed to record the entire meeting. The State contends, however, that OPMA does not require a verbatim transcript and that OSG's written memoranda summarizing the substance of the discussions that took place at that meeting suffice to constitute compliance with the statute.

According to N.J.S.A. 10:4-14:

Each public body shall keep reasonably comprehensible minutes of all its meetings showing the time and place, the members present, the subjects considered, the actions taken, the vote of each member, and any other information required to be shown in the minutes by law, which shall be promptly available to the public to the extent that making such matters public shall not be inconsistent with [N.J.S.A. 10:4-12].

N.J.S.A. 10:4-12a provides that, with some exceptions not applicable here, "all meetings of public bodies shall be open to the public at all times." The PIC is not a "public body" under the OPMA, because it does not have status as a "voting body" under N.J.S.A. 10:4-8a, Allan-Deane Corp. v. Township of Bedminster, 153 N.J. Super. 114, 117-18 (App. Div.), certif. denied, 74 N.J. 272 (1977), but the State nevertheless concedes that the State Planning Rules require all meetings of the Commission, or a subcommittee thereof, to be conducted in accordance with the OPMA. N.J.A.C. 17:32-8.5(h).

According to N.J.S.A. 10:4-15a:

Any action taken by a public body at a meeting which does not conform with the provisions of this act shall be voidable in a proceeding in lieu of prerogative writ in the Superior Court, which proceeding may be brought by any person within 45 days after the action sought to be voided has been made public; provided, however, that a public body may take corrective or remedial action by acting de novo at a public meeting held in conformity with this act and other applicable law regarding any action which may otherwise be voidable pursuant to this section; and provided further that any action for which advance published notice of at least 48 hours is provided as required by law shall not be voidable solely for failure to conform with any notice required in this act.

The objectives of the OPMA are to give full access to all public meetings of governmental bodies and to protect against secrecy in public affairs. Lakewood Citizens for Integrity in Gov't, Inc. v. Lakewood Twp. Comm., 306 N.J. Super. 500, 505-06 (Law Div. 1997). The OPMA was enacted to expand public access to all stages of the decision-making process, including discussions held prior to formal voting. S. Jersey Publ'g Co. v. New Jersey Expressway Auth., 124 N.J. 478, 490 (1991); Loigman v. Township Comm. of Middletown, 308 N.J. Super. 500, 503 (App. Div. 1998); Houman v. Mayor & Council of Borough of Pompton Lakes, 155 N.J. Super. 129, 155 (Law Div. 1977). The act is in keeping with the strong tradition favoring public involvement in almost every aspect of government. Polillo v. Deane, 74 N.J. 562, 569 (1977).

There is no exception in the OPMA for "substantial compliance;" thus, strict adherence to the letter of the law is required in considering whether the statute was violated. Id. at 577-78; Roman v. Township of South Hackensack, 302 N.J. Super. 568, 576 (App. Div.), certif. denied, 152 N.J. 191 (1997); AQN Assocs. v. Township of Florence, 248 N.J. Super. 597, 614 (App. Div.), certif. denied, 126 N.J. 385 (1991). It is nevertheless recognized that "invalidation of public action is an extreme remedy which should be reserved for violations of the basic purposes underlying the Act." Liebeskind v. Mayor & Mun. Council of Bayonne, 265 N.J. Super. 389, 394 (App. Div. 1993). A court thus has circumstantial discretion in fashioning a remedy for a technical violation of the statute that does not result from bad faith motives or undermine the fundamental purposes of the act. Id. at 394-95. A court may consider the nature, quality, and effect of the noncompliance when fashioning corrective measures. Polillo, supra, 74 N.J. at 579. The OPMA should not be used as a weapon to invalidate the actions of public bodies adopted by processes that do not, in reality, frustrate the salutary purposes of that statute.

The OPMA does not require a stenographic or verbatim record of meetings. Hudanich v. Borough Council of Borough of Avalon, 183 N.J. Super. 244, 258 (Law Div. 1981); Caldwell v. Lambrou, 161 N.J. Super. 284, 287 (Law Div. 1978). Rather, what is required is that "reasonably comprehensible minutes" of all meetings be maintained and made available, and that these minutes record the subjects considered and actions taken. N.J.S.A. 10:4-14.

Moreover, appellant was not entitled to a record of the discussions that members of the PIC may have had with other state agencies, including the DEP. Those informal discussions are not covered by the OPMA because they were not the meetings of a public body, nor were they the meetings of the Commission or a subcommittee thereof.

Appellant's challenge focuses on the lack of a record of the PIC meeting. It is not disputed that minutes were kept of the Commission's subsequent meeting, at which the votes on the two resolutions were taken. The absence of PIC meeting minutes and the fact that the belatedly furnished transcript was incomplete are not fatal defects. The bases for PIC's recommendations were fully set forth in the memoranda written by the OSG to the PIC regarding the petitions. The legally effective actions we are reviewing here were undertaken by the Commission. The regulatory flaw in the PIC proceedings is realistically of less moment than a like deficiency in the Commission's proceedings would have been. The PIC's actions were only recommendatory and, by themselves, had no legal effect.

To the extent there may have been a technical violation of OPMA-type regulatory requirements in the PIC's proceedings themselves, we discern no bad faith on the part of those involved, i.e., no intention to subvert the purposes of either that statute, or the regulation that applied it to the PIC, or the State Plan, or the Act. A full layer of consideration and public body action, that of the Commission itself, existed after PIC consideration and superseded it.

The PIC was a committee of the Commission. As soon as appellant requested the record of the committee's meeting, a verbatim transcript was supplied. The problems with the audiotape that furnished the basis for the transcript were apparently inadvertent. Appellant does not contend that the public was denied access to the meeting or that notice of the meeting was not adequately given to the public. In these circumstances, there is no good reason to invalidate the otherwise sustainable resolutions later adopted by the Commission. See Liebeskind, supra, 265 N.J. Super. 394-95 (focusing on the flexibility in fashioning remedies for technical violations of the OPMA). "[I]nvalidation of public action is an extreme remedy which should be reserved for violations of the basic purposes [of the OPMA]." Id. at 394.

VII

Appellant also contends that a conflict of interest by one member of the Commission mandates nullification of the Commission's actions adopting the four resolutions at issue.

That Commission member, John Eskilson, was also director of the Sussex County Planning Department. Although he recused himself from the discussion that took place at the PIC meeting of March 26, 2003 regarding the Sandyston and Montague petitions, he became involved in the discussions of the Sparta and Vernon applications on May 28, 2003. The OSG representative acknowledged in at least one of these instances that his office had had discussions with Eskilson when he was "wearing his hat" as the county planning director. Subsequently, at the Commission meetings of April 23, 2003 and July 16, 2003, Eskilson recused himself from the discussion and abstained from voting, after noting in the first instance that he supported the mayor of Sandyston in the petition to designate the two village centers in that municipality.

Appellant claims that Eskilson's recusal from discussion and voting was insufficient "to cleanse the conflict," and that his statement in support of at least one of the petitions was the equivalent of participation because it "had the appearance and potential to inappropriately influence the outcome and therefore tainted the process."

A public official is disqualified from participating in proceedings "in which the official has a conflicting interest that may interfere with the impartial performance of his duties." Paruszewski v. Township of Elsinboro, 154 N.J. 45, 58 (1998)(quoting Scotch Plains Fanwood Bd. of Educ. v. Syvertsen, 251 N.J. Super. 566, 568 (App. Div. 1991); see also Wyzykowski v. Rizas, 132 N.J. 509, 523 (1993). Whether an interest should disqualify the official is a factual question and depends on the circumstances of a particular case. See Paruszewski, supra, 154 N.J. at 58; Shapiro v. Mertz, 368 N.J. Super. 46, 53 (App. Div. 2004). Courts should condemn anything that indicates a likelihood of corruption or favoritism. See Paruszewski, supra, 154 N.J. at 58.

Although the potential for conflict is enough to justify disqualification, there cannot be any conflict unless there are "contradictory desires tugging the official in opposite directions." LaRue v. Township of East Brunswick, 68 N.J. Super. 435, 448 (App. Div. 1961); accord, Paruszewski, supra, 154 N.J. at 59; Wyzykowski, supra, 132 N.J. at 524; Shapiro, supra, 368 N.J. Super. at 53. A conflicting interest arises when the public official has an interest not shared in common with other members of the public. See Wyzykowski, supra, 132 N.J. at 524; accord, Shapiro, supra, 368 N.J. Super. at 53.

There are four types of situations requiring disqualification: (1) when an official votes on a matter benefitting the official's own property or affording a direct financial gain; (2) when an official votes on a matter that financially benefits someone closely tied to the official; (3) 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; and (4) 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. See Paruszewski, supra, 154 N.J. at 59; Wyzykowski, supra, 132 N.J. at 525-26; Shapiro, supra, 368 N.J. Super. at 52.

Applying these principles here, we conclude that Eskilson's involvement was not a conflict of interest. The Act itself directs that four of the seventeen members of the Commission "shall represent municipal and county governments." N.J.S.A. 52:18A-197c. This express provision seems to suggest a sense that the Commission benefits from the input provided by representatives of local governments.

We are mindful that the Act provides that "[m]embers of the commission shall be subject to the provisions of the 'New Jersey Conflicts of Interest Law,' P.L. 1971, c. 182 (C. 52:13D-12 et seq.)." N.J.S.A. 52:18A-197. No party in this appeal has discussed this provision of the State Planning Act or the New Jersey Conflicts of Interest Law, N.J.S.A. 52:13D-12 to -28.

According to N.J.S.A. 52:13D-23(a), the head of each state agency shall promulgate a code of ethics to govern and guide the conduct of the employees or officers of that agency. Such a code of ethics "shall conform to the following general standards":

(1) No State officer or employee or special State officer or employee should have any interest, financial or otherwise, direct or indirect, or engage in any business or transaction or professional activity, which is in substantial conflict with the proper discharge of his duties in the public interest.

(2) No State officer or employee or special State officer or employee should engage in any particular business, profession, trade or occupation which is subject to licensing or regulation by a specific agency of State Government without promptly filing notice of such activity with the Executive Commission on Ethical Standards, if he is an officer or employee in the Executive Branch, or with the Joint Legislative Committee on Ethical Standards, if he is an officer or employee in the Legislative Branch.

(3) No State officer or employee or special State officer or employee should use or attempt to use his official position to secure unwarranted privileges or advantages for himself or others.

(4) No State officer or employee or special State officer or employee should act in his official capacity in any matter wherein he has a direct or indirect personal financial interest that might reasonably be expected to impair his objectivity or independence of judgment.

(5) No State officer or employee or special State officer or employee should undertake any employment or service, whether compensated or not, which might reasonably be expected to impair his objectivity and independence of judgment in the exercise of his official duties.

(6) No State officer or employee or special State officer or employee should accept any gift, favor, service or other thing of value under circumstances from which it might be reasonably inferred that such gift, service or other thing of value was given or offered for the purpose of influencing him in the discharge of his official duties.

(7) No State officer or employee or special State officer or employee should knowingly act in any way that might reasonably be expected to create an impression or suspicion among the public having knowledge of his acts that he may be engaged in conduct violative of his trust as a State officer or employee or special State officer or employee.

(8) Rules of conduct adopted pursuant to these principles should recognize that under our democratic form of government public officials and employees should be drawn from all of our society, that citizens who serve in government cannot and should not be expected to be without any personal interest in the decisions and policies of government; that citizens who are government officials and employees have a right to private interests of a personal, financial and economic nature; that standards of conduct should separate those conflicts of interest which are unavoidable in a free society from those conflicts of interest which are substantial and material, or which bring government into disrepute.

[N.J.S.A. 52:13D-23(e)(1)-(8).]

Thus, the Conflicts of Interest Law recognizes that each agency's code of ethics should address the particular needs and problems of that agency. See State of New Jersey, Office of Employee Relations v. Communications Workers of Am., 267 N.J. Super. 582, 588 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994). The law prohibits not only actual misconduct but also the appearance of impropriety. See ibid. (citing N.J.S.A. 52:13D-23(e)(7)).

According to the introductory section of the State Planning Commission Code of Ethics (the "Code"), adopted on June 24, 1988, members of the Commission "must avoid conduct which is in violation of the public trust or which creates a justifiable impression among the public that such trust is being violated." Section Two sets forth the ethical standards governing Commission members. According to 203(a), no Commission member shall appear for or negotiate on behalf of any party other than the Commission in connection with any matter pending before the Commission. According to 211, no Commission member shall "undertake any employment or service, whether compensated or not, which might reasonably be expected to impair his objectivity and independence of judgment in the exercise of his official duties." According to 213, no Commission member shall act in any way "that might reasonably be expected to create an impression or suspicion among the public . . . that he may be engaged in conduct violative of his trust as a State official."

Section Four deals with voting restrictions. According to 401:

No Commission member . . . shall participate by voting or any other action including discussion and debate, during any meeting of the State Planning Commission, in any cause, proceeding, application or other matter in which he has a financial interest, whether direct or indirect and whether by himself or through his spouse, any member of his immediate family, or any partnership, firm, corporation, until he files with the Commission a written statement under oath (which shall be entered verbatim into the minutes of said meeting) stating that he has such an interest, describing the nature of the interest, and stating that, notwithstanding such interest, he is able to cast a fair and objective vote and otherwise participate in such matter.

Applying these sections of the Code, it is far from clear that Eskilson was required to recuse himself from voting or from participation in discussions of the applications at issue, although it was probably wise for him to do so in order to avoid the appearance of impropriety or any other questions that might arise. He had no direct or indirect financial interest in the petitions before the Commission, only a subject matter involvement as a public officer. He did not violate 203(a) by engaging in discussions with the OSG as a representative of the Sussex County Planning Department because he never "represented" the County before the Commission. As we have observed, the Act and the Plan contemplate both inter-agency cooperation and coordination, and the involvement of municipal and county officials in the decision-making process.

We discern no basis for concluding that Eskilson's objectivity or independence of judgment was impaired in violation of 211, especially since he never actually voted on the petitions before the Commission. Because he did not act in any way that might be perceived as a violation of the public trust, he did not violate 213.

VIII

To the extent we have not addressed any other arguments appellant has advanced we deem the issues to be of insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(D), (E).

 
The actions of the Commission in adopting the challenged resolutions are affirmed.

The State Plan currently in effect was adopted by the State Planning Commission on March 1, 2001. It is not codified in any regulation. It is a 359-page document that is available on-line at http://www.state.nj.us/dca/osg/plan/stateplan.shtml and from the Commission in a bound volume.

The State Plan provides for five types of centers: urban, regional, town, village, and hamlet.

The described version of the rule was in effect only until January 2002. Effective January 7, 2002, N.J.A.C. 17:32-8.6(a)(4) provided that the Director of the OSP may disapprove a petition requesting an amendment to the State Map "that conflicts with the criteria for planning areas, centers, critical environmental sites, historic and cultural sites, parks and military installations set forth in the State Development and Redevelopment Plan." The current version of the rule provides that the Executive Director of the OSG is required to prepare a report containing detailed findings and conclusions concerning the petition, and if he or she determines that the petition is "consistent" with the State Plan, he or she shall recommend that it be approved by the Commission. N.J.A.C. 5:85-8.6(a). "Only the State Planning Commission may act on a proposed map amendment provision." N.J.A.C. 5:85-8.4(f).

(continued)

(continued)

3

A-6589-02T3

March 3, 2006