Kane Properties, LLC v. City of Hoboken
214 N.J. 199
| N.J. | 2013Background
- Kane Properties sought a use variance and related approvals to redevelop 511-521 Newark Street in Hoboken's industrial 1-2 zone for a 12-story residential building with a childcare center.
- The property had been owned by Anthony Rey, whose meat wholesale business historically caused complaints from nearby Skyline Condominiums, leading to relocation of Rey Foods and vacancy of the Hoboken site.
- The Hoboken Zoning Board granted the requested use and bulk variances in November 2009 after hearings and expert testimony supporting the variances.
- Skyline appealed to Hoboken City Council; during the appeal, Skyline’s prior objector counsel, Michael Kates, Esq., had become Corporation Counsel for the City, creating a conflict of interest.
- Kates initially recused, but subsequent actions included sending a memoranda about procedures, and, at a May 5, 2010 meeting, he actively participated and signed a approving resolution.
- The City Council, in a de novo review, reversed the Zoning Board’s variances except for the childcare-use variance, citing concerns about the scope of permitted uses and the Master Plan, and found the variances detrimental to the zoning scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did Kates's conflict taint the City Council's decision? | Kates's involvement created an appearance of impropriety that tainted the Council's action. | Any minimal, ministerial involvement by Kates was insufficient to taint the decision; the Council acted properly on the record. | Yes; taint found; complete tainting due to incomplete recusal; remand necessary. |
| What is the proper remedy forum after taint is found? | Ask this Court to decide de novo on the merits or remand to a new, untainted forum. | Remand should be to the City Council to preserve objector rights and de novo review with full council involvement. | Remand to the Law Division for de novo review with consideration of the City's expertise; guard against further taint. |
| What standard governs review of the tainted governing body's decision and the remedy? | Governing body taint invalidates decision and requires merits-based de novo adjudication. | Lawful de novo review by the Law Division can restore proper consideration without dismissing City Council input. | Apply de novo review by the Law Division, incorporating the City's expertise; ensure appearance of impropriety standard. |
Key Cases Cited
- DeNike v. Cupo, 196 N.J. 502 (N.J. 2008) (appearance of impropriety standard for judge conduct; objective reasonable belief governs)
- In re Cipriano, 68 N.J. 398 (N.J. 1975) (appearance of impropriety and public trust in public bodies)
- Lafayette v. Bd. of Chosen Freeholders, 208 N.J. Super. 468 (App.Div. 1986) (attorney influence over public bodies requires close scrutiny and limitation)
- Evesham Twp. Bd. of Adjustment v. Evesham Twp. Council, 86 N.J. 295 (N.J. 1981) (governing body review of board decisions; de novo authority and expert input)
- Comm. for a Rickel Alt. v. City of Linden, 111 N.J. 192 (N.J. 1988) (governing-body review scope and distinction from court review in MLUL context)
- Jayber, Inc. v. Mun. Council of W. Orange, 238 N.J. Super. 165 (App.Div. 1990) (presumption of validity for governing-body decisions on appeal; deference to Council)