November 25, 2015 Urban Lawyer

Further Developments in Land Use Ethics

by Patricia E. Salkin & Darren Stakey

Patricia E. Salkin is Dean and Professor of Law, Touro College Jacob D. Fuchsberg Law Center; chair of the ABA State and Local Government Law Section’s Committee on Ethics in Land Use. Darren Stakey is a 2015 graduate of Touro College Jacob D. Fuchsberg Law Center; N.Y. Pro Bono Scholar, inaugural class; clerk to Chief Justice Saylor of the Supreme Court of the Commonwealth of Pennsylvania.

I.  Introduction

Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma mater,1 to the outright bribery of a former mayor,2 the past year has been rife with a range of conduct implicating professional responsibility and land use.

II.  Conflicts of Interest

A.  Attorney Conflicts

In an unpublished per curiam opinion, a New Jersey appellate court found that it was not a conflict for an attorney to accept the endorsement of his former client, then-mayor, for a municipal attorney position, and that, similarly, the mayor had not acted improperly.3

A complaint was first filed against Scott M. Alexander, the then- mayor of the Borough of Haddon Heights, alleging that he “violated the Local Government Ethics Law by proposing and supporting [a candidate for] Borough[] Solicitor” who had represented him in a family law matter.4 With the mayor’s support, the Haddon Heights Borough Council undertook a public vote and resolved to allocate an annual retainer for Robert Gleaner, the attorney, which covered “attendance at public meetings . . . and his ‘interactions’ with officials and citizens,” and set “an hourly rate of $150 for litigation or special projects.”5 The now-former mayor defended the endorsement of his personal lawyer in a letter, responding that the Advisory Committee on Professional Ethics of the New Jersey Supreme Court already ruled that “an attorney is ethically permitted to represent a municipal official in any matter that is unrelated to the municipality.”6 Further, the mayor contended that there were no situations flowing from Mr. Gleaner’s municipal representation in which a “direct financial or personal involvement . . . had impaired [either party’s] objectivity or independence of judgment.”7

In reviewing the matter, the Legal Finance Board decided that the relationship between the mayor and the solicitor was too attenuated “to constitute a ‘prohibit[ed] involvement’ and could not ‘reasonably be expected to impair’ the Mayor’s ‘objectivity or independence of judgment.’ ”.8 On appeal, the Superior Court of New Jersey, Appellate Division, concurred with the Finance Board that the relationship between the mayor and his lawyer “was ‘too tenuous’ to support a violation.”9 The court also found nothing unusual with regard to the attorney’s fees charged and noted that nothing in the record tended to suggest that the prior representation affected any public interest pertaining to the municipality.10

In Connecticut, allegations of impropriety were rejected where the father of a zoning board chairperson’s son-in-law served as personal attorney for an applicant whose request for variances was approved.11 The original application submitted to the Fairfield Zoning Board of Appeals was for variances that would “permit the construction of a single-family residence on [an] unimproved parcel” in a flood plain zone.12 Ultimately, however, the applicant, through his lawyer, sought permission to construct a three-story commercial building entirely within the flood zone.13 At the “close of a public hearing, the Board . . . approve[d] the requested variances” and “the decision was published in a newspaper.”14 Eight residents appealed the decision and the Superior Court of Connecticut, Judicial District of Fairfield, held that five of the residents had standing due to the close proximity of their property to the subject parcel.15 Though the court determined that the applicant’s property was not entitled to preexisting nonconforming use status because the previous use had been abandoned for several years, it rejected the argument that the affirmatively-voting chairman of the Zoning Board of Appeals had a conflict of interest simply because the father of his son-in-law was the applicant’s attorney.16 The court asserted that “municipal governments would be seriously handicapped[] if any conceivable interest, however remote or speculative, would require the disqualification of a zoning official,” and because there were no personal or pecuniary interests implicated by the subject matter of the application, or any relationship with any of the parties who were before the Zoning Board of Appeals, no violation had occurred.17 Further, as the chairman was not directly related, by blood or marriage, to the applicant and was not a part owner of the parcel in question, “the fact that his daughter [was] married to the son of the personal attorney and cousin of an owner to the property [was] too attenuated” a basis upon which to maintain a personal interest claim against the chairman.18

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