January 1, 1900

by Henry A. Hill

It happens all the time. An application is pending before a planning board and certain board members, who are supposed to sit as "judges" on the application, suggest that they are going to deny it before they even hear it. How can that be, and what can be done about it?

A Case Study

One case presently being litigated by Hill Wallack illustrates the problem. A large and controversial development application is being heard before the planning board and the local newspaper has published an article announcing that the Sierra Club has identified the proposed development as the worst example of sprawl in Central New Jersey. The article contains interviews with two sitting members of the planning board, who the reporter identifies as major opponents of the development. The article contains quotes as to their reasons for opposing the development. One of the members, the mayor of the municipality, has just won his election following a "one issue campaign" in which he ran against the proposed development.

Requesting Board Members to Step Aside

The applicant's lawyer has moved before the planning board, after questioning the reporter and concluding that the board members advised him that they were vehemently opposed to the development, requesting that the board members identified and quoted disqualify themselves on the basis of prejudice and prejudgment. Both members of the planning board have refused to disqualify themselves and the planning board attorney has informed the applicant that he must prove prejudice and prejudgment. The local newspaper has evoked the New Jersey Shield Law to prevent the taking of the deposition of the reporter who wrote the story, and the planning board members quoted in the article have either denied or do not remember if they made the statements attributed to them in the article.

The Court's Rulings

These are the facts currently being litigated in Hunterdon County in a case entitled P & H Clinton Partnership v. Planning Board of Clinton Township. Under these facts, the court has allowed the applicant to take the deposition of the two planning board members despite the fact that courts are usually extremely reluctant to interfere with such administrative procedures. Nevertheless, in a preliminary decision the court has allowed the applicant to attempt to prove that it is being denied due process because the individual board members have fixed and unshakable views, and are therefore incapable of considering the evidence and making an impartial judgment.

Hurdles to Overcome

The proofs in the case are considerably impaired by the position of the publisher of the newspaper, in evoking the Shield Law, N.J.S.A. 2A:84A-21(b), as well as the case of In re Schuman, in which the Supreme Court held that the Shield Law protects reporters from answering any questions about their stories unless a criminal defendant's Sixth Amendment fair trial right is involved. In that case, a county prosecutor was prohibited from questioning a reporter who had written a story containing an interview with a kidnapping and murder suspect in which the suspect had admitted beating the victim to death.

In theory, even applicants for controversial housing developments have the right to a fair hearing before an impartial tribunal, whether it be a planning board or a zoning board of adjustment. Thus, although the law governing this area provides some hurdles to overcome, board members who make provable statements indicating that they are opposed to a pending application, before the evidence is presented, may be disqualified by a court for prejudice and prejudgment.

Henry A. Hill is a senior partner of Hill Wallack. He is head of the firm's Land Use Division and partner-in charge of the Division's Land Use Litigation Practice Group. A recognized national expert in the field of land use law, he is a past-Chair of the New Jersey State Bar Association's Land Use Section.