When Do Zoning Board Member Have a Conflict of Interest?

In Vincent Piscitelli v. City of Garfield Zoning Board of Adjustment, the Supreme Court of New Jersey clarified when conflicts of interest may disqualify a Zoning Board member from voting on a matter. The court stopped short of finding that members of the Garfield Zoning Board of Adjustment had a disqualifying conflict of interest, ordering the lower court to gather more facts.

Zoning Board

Facts of Piscitelli v. City of Garfield Zoning Board of Adjustment

The case involves an application filed by members of the Conte family to develop three lots in the City of Garfield. Two of the three lots to be developed were co-owned by the irrevocable trusts of Dr. Kenneth S. Conte (Dr. Kenneth) and his brother, Dr. Daniel P. Conte, Jr. (Dr. Daniel). Dr. Daniel personally owned the third lot. A trust benefitting Dr. Kenneth’s nephew — Dr. Daniel P. Conte, III (Dr. Daniel III) — and his two nieces applied for development approvals. All three Contes practiced medicine in the adjacent medical building owned by Dr. Kenneth and Dr. Daniel.

Dr. Kenneth was a longtime member and the then-president of the Garfield Board of Education, which approves, among other things, school employee appointments, contracts, and salaries. Five Zoning Board members were employed or had immediate family members employed by the Garfield Board of Education. To avoid the appearance of a conflict, the two lots owned by trusts bearing the names of Dr. Kenneth and Dr. Daniel were transferred to the trust benefitting Dr. Kenneth’s nieces and nephew. Despite the intra-family transfer of property, Dr. Kenneth made his presence known at the hearing and made clear his position favoring the project.

The Piscitellis objected to the development project and claimed that a conflict of interest barred Zoning Board members who were employed or had immediate family members employed by the Board of Education from hearing the application. The Piscitellis also contended that any members who were patients or who had immediate family members who were patients of the Contes also had a disqualifying conflict.

No Zoning Board member disqualified himself or herself on conflict-of-interest grounds. The Board granted site plan approval and the requested variances for the Conte project. The trial court upheld the Zoning Board approvals and denied the Piscitellis’ request to inquire whether any Zoning Board members or their family members were patients of Dr. Kenneth, his brother, or his nephew. The Appellate Division affirmed

NJ Supreme Court’s Decision in Piscitelli v. City of Garfield Zoning Board of Adjustment

The New Jersey Supreme Court reversed and remanded. It directed the lower court to assess two separate bases for a potential conflict of interest.

According to the New Jersey Supreme Court, the answers to the following questions will decide the case:

First, did Dr. Kenneth — as president or a member of the Board of Education — have the authority to vote on significant matters relating to the employment of Zoning Board members or their immediate family members? Second, did any Zoning Board members or an immediate family member have a meaningful patient-physician relationship with any of the three Conte doctors? If the answer to either of those questions is yes, then a conflict of interest mandated disqualification and the decision of the Zoning Board must be vacated. The Court does not possess sufficient information to answer those questions.

In reaching its decision, the New Jersey Supreme Court emphasized that the “overall objective of conflict of interest laws is to ensure that public officials provide disinterested service to their communities and to promote confidence in the integrity of governmental operations.” Specifically, whether a disqualifying conflict of interest required the recusal of any member of the Garfield Zoning Board of Adjustment from hearing the development application is governed by three distinct sources of law: the Local Government Ethics Law; the Municipal Land Use Law (MLUL); and the common law. 

The court went on to explain that the question is not whether a public official has acted dishonestly or has sought to further a personal or financial interest. Rather, the decisive factor is whether there is a potential for conflict. According to the court, “a conflict of interest arises whenever a public official faces contradictory desires tugging him or her in opposite directions.”

As highlighted by the court, concern by a public official that a vote might have a negative impact on the official’s employment — or a family member’s employment — might give reason to consult one’s private interest. “If any zoning board members had reason to believe that voting against the development application might be a bad career move for them or their family, a disqualifying conflict of interest would be present,” the court wrote.

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