City Commission

1 Richard C. McCarthy Commission Chamber Millville City Hall August 22 , 2023 , Immediately following 5:00 P.M. Special Session Meeting Appeal Hearing Concerning Approved (D) Variance for Block 416, Lot \2- Richard Abhott vs City of Millville Zoning Board of Adjustment and our Future First The Board of Commissioners met in a PUBLIC HEARING with Mayor Orndorfpresiding. Members present: Hewitt, Sooy, Watson, Romanik and Orndorf. City Solicitor. Brock Russell was also present. Open Public Meeting Statement by Mayor Orndorf "This meeting is being conducted in accordance with the Open Public Meetings Act of 1975 and was advertised, posted and made available to the public as required by Statute. The Municipal Clerk is directed to include a statement in the minutes of this meeting." Legal Argument of Our Future First on the Threshold Issue of Timeliness Mr. Norman: "Thank you for letting us, the first public hearing for this evening, because I know the re was a second special meeting. The statute, the Municipal Land Use Law says that an appeal of the Zoning Board's grant ofa use variance must be filed within 10 days and there is no enlargement period as the re is with other provisions that you deal with land use. Typically, filing lawsuits, where you file lawsuits, there is a 45-day right of appeal subject to enlargement in the interest of justice. There'S no such provision of enlargement, there ' s no discretion, it's 10 days. The hearing before the Zoning Board was on December 2"d, 2022, Mr. Abbott was present with his legal counsel for the entire proceedings from my review of the transcript. Mr. Abbott pa.1icipated fully at that hearing. He was aware of the decision at the end of the meeting and essentially, he was on notice of the board's decision on December 2,d Now. the resolution was adopted January 10'" and perhaps he would want to review the resolution to figure out what it says, but he knew the outcome and ifhe was going to make preparations to appeal to the commissioners regarding the decision , that preparation should have been made early. As I understand it. I believe his counsel who was now the Zoning Board Solicitor, submitted an RFP for the Zoning Board Solicitor position in November 2022. As an attorney who practices for municipalities, many municipalities, if I have that issue of representing private clients and a municipal board in the same town or perspective municipal board, I' ve got to make preparations for the transition for when that happens because there's statutory deadlines under the Municipal Land Use Law and I have to make sure my client's interests are put first and that any time deadlines are met for filing any appeals or whatever and I can, I actually can give you a parallel situation to this, was also in, I believe it was this county, it was in Mantua and Gloucester County. The situation was there was a request for a zoning interpretation for a marij uana cultivation facility in Mantua Township and it was filed for a zoning permit with the zoning officer. The zoning officer in Mantua. they just happened to have one retiring and a new one came in and the new zoning officer was sort of learning the ropes and as he took the position, the appeal came and by statute you have 10 days from the receipt of the zoning permit application to make a decision on it and if the zoning officer fails to do so, it' s basically, the zoning pernli! is automatically issued and what happened waS the new zoning officer was trying to get in contact with the municipal solicitor for some legal guidance as to how to deal with this marijuana grow and within the time period, the 10 day period expired. So, there was all kinds of equitable reasons for the town to argue that the 10 year period should be enlarged , it went to Judge Eastlick at the Superior Court in New Jersey and just by parallel analogy there was no period of enlargement from the 10 days, basically the Superior Court ordered a zoning permit ror a marijuana grow simply on inaction on 10 days and by parallel extension here, the statute says 10 days, no enlargement, there' s no discretion. It's 10 days, and the 10 days started to run from January 10'" and expired January 20'" and quite frankly the appeal was filed on January 3D''', so it was filed 10 days late. But, as I indicated, even if you were, for the sake of argument, to consider equitable arguments, you know, the attorney was leaving the position as representing the private client to switch hats to become the zoning board attorney, you have to make preparations for that and pa.1 of the preparations was that attorney should have notified Mr. Abbott to seek counsel because there' s a good chance 1 may not be able to represent you and if you wish to appeal you need to start preparing for that now, and it wasn ' t like a surprise where he only had ten days to make the decision. The fact is the zoning board approved the use variance on December 2,d, on December 3,d, if I am representing that private client, Mr. Abbott, I'm telling him you need to make, if you wish to appeal this decision, you got to sta.1 making plans for that  2 becausc you only have 10 days to do it and that means that if I'm not there, you got to find someone else to file the appeal on time. So, that's my argument on the, that you do not have jurisdiction to hear this appeal. Are we just addressing that issue first? Brock Russell: "Yes." o Mr. Norman: "Okay, that makes sense." Brock Russell: "and I had a question for you. You've already been to Superior Court, because Mr. Abbott at one point filed a complaint, In Licu of Prerogative Writs ... " Mr. Norman: "Correct.·' Brock Russell: "and that complaint was filed in a timely way. Is that correct? Do you acknowledge that?" Mr. Norman: " Yes." Brock Russell: ·'Okay. And at that hearing, isn't it true that you made the same argument to Judge Tclscy. where you said that there's no basis under the Municipal Land Use Law or under the ordinance or otherwise to grant relief from the 10 day requirement that I guess is contained in Section 17, and yet the Judge ruled that issue would have to come bac k to this governing body and they would have to make a determination and then, it would then, if there was an appeal taken, go back to him. Is that in essence what the Judge saidT Mr. Norman: "Yes, I would legally interpret what the Judge did is, this was already filed, take care of it first, I don ' t want to have piece meal litigation, I don't want to have to try one issue and then another issue, finish everything at the administrative level before you get to the Superior Court. So, first you as a commission, comm iss ioners, need to decide if you have the jurisdiction. I don't think the Judge made the determination substantively on .. :' Brock Russell: " I would agree with you, I'm not trying to insinuate that he did. But, you know. isn't it also the case here that even if the board or if the board ... Let me put it this way, no maller what this board does, this case is going to go back to Superior Court. Isn't that a pretty fair assumpt io n to make?" o Mr. Norman: "Weill cannot speak for Mr. Abbott in what action he would take, but I would ... if my client's use variance gets affirmed we've got nothing to appeal. .. " Brock Russell: "but Mr. Abbott would and he filed a prerogative writ application that was denied without prejudice so ... " Mr. Norman: "I understand what you're saying and yes, sometimes the municipal agency J;ets caught in the middle of two sides and they're damned if they do, damned if they don't, I mean. that happens sometimes, they're going to get litigation, that 's the way it is .. :' Brock Russell : "and if it does go back to Judge Telsey, I think it took five or six months lor the case to get before him for a hearing and for him to make a decision, so if it goes back to Judge Telsey then you're tal king about a delay, a f1ll1her delay of perhaps five or six months. Would you agree with me on thatT Mr. Norman: "No. If the ruling is adverse to my client, we are goi ng to file an Order to Show Cause. I don't mean that as a threat, we·rejust..'· Mayor Orndorf: "Can you repeat what you said you were going to tile? I'm sorry" Mr. Norman: "File an Order to Show Cause, a new complaint with an Order to Show Cause lor an expedited hearing date because this project has already bccn delayed for months as it is and we need an o expediti ous decision. Not because my client has any ill will to the city, we just want a detennination quicker .. ." Brock Russell: "and that would be something that would be discretionary with the Judge on whether he would grant it and I think he already gave, I think both attorneys kind of a blueprint as to how the case should proceed because he wanted Millville in the first instance to decide these issues. The issue  3 of timeliness and if necessary, the issue on the merits and then if the case would be right to go back before the Judge. Would that be a fair sunnise of what his ruling was? Mr. Norman: "I'd say that"s a fair characterization of how it was framed, but I think legally if you reach a conclusion that it"s out of time it"s moot, everything is moot as to the appeal itself, so ... " Brock Russell: "so you don't think, you don't think Mr. Abbott would have the . .... Mr. Norman: "he could appeal that, but that's ... " Brock Russell: "and then you would be, you ' d be stuck until that appeal was resolved. Isn't that true?" Mr. Norman: "Well, we'd be, ifhe files the appeal we' re going to move for a quick Summary Judgment, it 's a question of law. Is it a 10-day period to file the appeal. .. " Brock Russell: "yeah" Mr. Norman: " It"s a real simple issue .. ." Brock Russell: "yeah" Mr. Norman: "so, it wouldn't be, it wouldn't require an unduly lengthy period of time .. ." Brock Russell: "but all these cases, these Prerogative Writ Applications, they ' re all summary actions, they're all cases where in essence what happens is that the Judge asks for a briefing schedule, attorneys submit briefs and it still takes a long time for the case to get decided, at least in my experience and I've been doing it for 30 years" Mr. Norman: "Well, if we file the complaint, 30 days to it, to file an answer we could ask for a Management Conference, Judge you got one simple issue, which is the 10-day filing period. That'sjust a question of law, that's, that doesn't require any heavy lifting from a legal standpoint..." Brock Russell: "Yeah but even if the, even if the Judge agrees with you and disagrees with whatever or agrees with whatever decision this board made, there's still a timely Prerogative Writ Application that the Judge would have to hear and that can't be heard on an expedited basis. Can it?" Mr. Norman: "I'm sorry, I'm not understanding your question ... ·' Brock Russell: "Well, my point is that, you know, there are two periods of reposed in this case. There's a I O-day period of repose to take an appeal directly to the governing body ..... Mr. Norman: " right" Brock Russell: " but then there's also a 45-day period of repose to file an Action of In Lieu Prerogative Writs challenging the action of the Board of Adjustment and you've already said that was timely. So, doesn't, wouldn't the Judge have to decide that issue tooT Mr. Norman: "well it"s .. ." Brock Russell: "\ mean ifhe finds, 1 mean suppose the Judge finds that the appeal that Mr. Abbott made to this board was untimely ... " Mr. Norman: "yes" Brock Russell: "Doesn't he then have to decide the Prerogative Writ Application, that's all I'm trying to ... " Mr. Norman: "I believe that, I believe if you file it out of time your case. your case is going to get dismissed in its entirety, it"s like .. ." Brock Russell: "but he filed the complaint In Lieu of Prerogative Writs within 45-days of the date of publication. Didn't he?" Mr. Norman: "Yeah"  4 Brock Russell: "Yeah. Okay, that 's my only question ." Mr. Norman: "Okay." Brock Russell: "Does anyone else have a question of Mr. Norman on timeliness?" Vice-Mayor Sooy: "I'm looking at the transcript from the Judge from the cOLll1 case and you know basically what it says is, you know, leI us, well it basically says that we've agreed to hear it in this decision and I can get you the line number or whatever if you guys want to look it up. But it also says 0 basically after all this is done, then everybody can file their appeals, as you just said and it basically is going to stal1 over again. I mean I guess he ' s kind of urging us, he wants to know our logic. Let ' s see, so I don ' t see any prejudice either by the city, this is Judge Telsey, entel1aining, this is Page 12, Li ne 20, I don ' t see any prejudice either by the city entel1aining this appeal in placing its rationale on the record, all the pal1ies have the same right to challenge the city's determination Once they have the ability to make that determination. So, it kind of looks like he's telling us to make a determination and then ha ve them appeal as necessary .. ... Mr. Norman: "but, I don't think the Judge ruled that you have to grant the 10-day extens ion because he said wrap everything else up with it, I think they're separate, they're di screet issues .. ... Vice-Mayor Sooy: "I don't, I'm not disagreeing with you ..... Mr. Norman: "yeah" Vice-Mayor Sooy: "So and then il says Count 2 is a Prerogalive Writ and this is Page 13, Line 6, and because that and that too, because it's premature. If the city entel1ains the appeal the city is going to take whatever action it wishes to take on this appeal, which ultimately can make Count 2 the determination on the zoning application moot, so again the city has to be giving the 0ppol1unity to be heard on both of these. Basically, it's kind of looking like he wants us to exhaust all afoul' administrative remedies before he hears it again on whatever you guys ' appeal, if either one of you guys' appeal. I'm not sure about the 10-days because you're talking about 10-days, but he also filed the writ within the 45 days thaI is necessary for him to appeal to the COUI1 instead of to the city and the Judge said let the city 0 hear it first. That's how I am interpreting it. Am I wrong in that interpretation?" Brock Russell: "Well, I think that procedurally right now we're dealing with whether or not he filed a timely appeal to the governing body within 10-days. That's what we' re addressing now. I j ust wanted to make sure that everybody understands and agrees that no matter what we do, even if we grant your roques!.the case isn't necessarily over if somebody challenges that and goes to Superior Cour!. .. .. Mr. Norman: "That's accurate. Ifany appeal , ifMr. Abbott challenges the underlying decision, yeah , that goes through the ordinary course, so .. ... Mayor Orndorf: "Solicitor, do we believe that if Judge Telsey felt that the untimeliness on the city, would have said something and would have still said dismiss it then, but knowing that there is the 45 day as well, hesjust. he would prefer the city to hear it first than make the action .. ." Brock Russell: "Yeah, I don't think, I don ' t Ihink the Judge made a delermination o n the timeliness issue one way or another. .... Mayor Orndorf: "That's what like, I think I'm understanding and agreeing with Vice-Mayor. . ... Brock Russell: "I think he wanted us, now he could've done so, but he chose not to and I think ... " Mayor Orndorf: "correct. .... Brock Russell: "he wanted the city to decide that issue first." o Mayor Orndorf: "based on our Municipal Land Use Law." Mr. Norman : "Well your ordinance docs follow the statute and it says 10-days" Mayor Orndorf: "I, if I can, I can say that I understand that Mr. Abbott did not file correctly, his timeline was not correct with the city, however he did filed that 45 day within Superior COlll1 and I think that frol11 what I'm reading and what Vice-Mayor is reading is that Judge Telsey didn't speak 10 that, he's  5 speaking that we should make sure that we exhaust all administrative options and the timeliness wasn ' t brought up in this that ... Brock Russell : "Well it was and Judge . .." Mayor Orndorf: "I know I don ' t have the transcript in front of me .. . " Brock Russell: " Right, the Judge ... ." Mayor Orndorf: "I know Vice-Mayor has it.,, " Brock Russell: "the Judge wants us to decide the timeliness issue and because that issue could be dispositive, that' s why I asked that it be placed, placed on the agenda as the first item ... " Mayor Orndorf: "yeah" Brock Russell: "because quite frankly if you find that the application was untimely then yo u don't go on to this next stage, which would be a hearing on the merits of the application , so we need to address that first " Mr, Norman: "and my client appreciates it, because it's a threshold question, we don't want to waste a whole night going over the merits of the decision itself if it's unnecessary." Commissioner Hewitt: " If I may, I'm a little bit bewildered here also on the 10-day filing of an appeal. . ." Mr. Norman: "yes" Commissioner Hewitt: "I've been through an appeal. I had to hit every spot, I had to hit evelY point, because it was made perfectly clear that if I didn't the appeal wasn ' t going to be heard. That ' s the 10-day and then the 45 day did we, Mr. Solicitor, did, was there an intentional move to this 45 day period that we're talki ng about? I don ' t know, you know .. . " Mr. Norman : " If I can answer that. . ." Brock Russell: "No, they're two, they're two separate appeals. One would be an appeal to the governing body, which is only limited in one circumstance and that is, if the Board of Adjustment ofa town grants a (D) Variance because that goes against the zoning of the town, there's a special right to take an appeal only in a case like that to the governing body and that's not only under our ordinance, but that's under the Municipal Land Use Law. The 45-day period is the period that normally applies to an y planning board or zoning board decision . If someone doesn ' t like what the planning board did or the zoning board did, they can ' t go to the governing body, they have to go to Superior Court, they have to file a complaint In Lieu Prerogative Writs and they have to do so within 45 days, so that's the general rule, that's generally what you do. In this case the objector had the, I guess the option of also or seeking in the first instance an appeal directly to the governing body, which he did, albeit it was filed, I believe it was filed 12 days out of time by my calculations, I know you said 10, but I think it was arguably 12 days out of time and we can hear from counsel as to his view on that in a minute, but .. . Does that clarify things a little bit?" Commissioner Hewitt: "Yeah, I was just trying to clarify in my own mind as in being through one of these and I never knew of the 45-day deal." Mr. Norman: " it, you know, it's almost as if, if you find that the 1O-day period expired and the appeal was untimely, it's as if it never came to you in the first instance and Mr. Abbott would have a right to appeal the Zoning Board' s decision to grant the approval to the Superior Court and that would be the posture of it, it will be as if you, it never came in front of you , it wouldjust be like an ordinary zoning challenge. And I have nothing further and whether it's 10 days or 12 days, that's of no importance because this . .. or 12 days, I'm sorry, it's, it's exceeded the 10 days statutory period, the filing, so therefore you know our position." Brock Russell: "Okay, if you ' re finished , I'm looking at the, the agenda and I think we may have left poor Miss Garty out by accident and I don ' t know who goes next ... Who would like to go next? Do you want to go next?"  6 Jim Moore: "Good evening ladies and gentlemen, my name is Jim Moore, I represent Richard Abbott with respect to this appeal. With regard to the threshold issue ... ·' Brock Russell: "Can you move the mic ... '· Mayor Orndorf: "can you, yeah, sony." o Brock Russell: "having trouble hearing" Jim Moore: "Can you hear me now?" Jeanne Parkinson: "Yes, perfect" .lim Moore: "Is that a little better, I'm sorry, I'm a little soft spoken ... although that 's not what my kids tell me, so. With respect to the timeliness orthe appeal, first I want to focus on the statute and the ordinance that governs that I O-day timeframe. Nothing in the ordinance or the statute prohibits the city from hearing this appeal not withstanding there's a 10-day period in the ordinance. Just as there is no expressed permission in either the statute or the ordinance for relaxing that time period. There's no expressed prohibition against doing so, and Professor Cox in his seminal treatise on zoning and land usc law speaks to this and I cited this in the brief that I have filed with the board. Section 42-1.2 it talks about the governing body's ability to enlarge the time to appeal in its discretion, and I'm quoting "It would seem consistent with general law that the governing body would have power to enlarge that time where it is manifest at the interest of justice or requires on the same basis that the Superior Coul1 is authorized to do so under Rule 4:69-6c of the Rules OfCouI1". He, Professor Cox, explicitly talks about this in terms of an exercise of discretion so I respectfully disagree with counsel as to whether an, whether discretion lies with thc board to consider this, not withstanding that it may have been filed out of time. But, we've been talking about the 45-day Prerogative Writ period under the Rule and under the Municipal Land Use Law and I also addressed this in my brief, that 45-day period is triggered by a publication of a conforming notice in a newspaper of general circulation in the municipality. The notice that was published on January 10,2023 was not conforming, because it did not advise that a copy of the determination of the Zoning Board had been filed in the office of the board or the Municipal Clerk, nor that it was available for inspection. So, it's Mr. Abbott' s position that, that 45-day period has not yet begun to run because the only notice of publication that has been published to my knowledge is that January 10'h nonconfonning 0 notice. It would be, it would lead to an absurd result if the 10·day period to appeal directly to this board under the ordinance were to have been deemed to have already lapsed when the 45-day period for a Prerogative Writ Action hasn't yet begun to run due to that deficiency in the notice. So, I think that ' s imp0l1ant for the board to consider that, although we' re talking about timeframes ... that in Our Future First's view are immutable those timeframes haven't yet begun to run, because of how the notice was published and what it says and more importantly what it doesn ' t say. I want to brieny touch on the Rico case that I cited on Page 7 of my brief and it talks about direct appeals of use variances to the governing body. The appellate division in that case spoke of, it noted there's a strong legislative intent to grant the governing body a substantive role in the variance process. It noted that the governing body is uniquely qualified to determine whether granting a requested variance would substantially impair the zoning ordinance or the master plan and that broad power is not only reasonable but consistent with the purposes and provisions of the Municipal Land Use Law. Mr. Abbott submits that this case isjust the kind of case that Rico contemplates and believes that this body is best suited to conduct that review in light of its knowledge and expertise in zoning malters in Millville, in pal1icularly this area, so for those reasons Mr. Abbott believes that the interest of justice do suppOl1 relaxation of the IO-day time period should the board conclude that time period has in fact begun to run, both as to the legal issues presented and to the respective equities of the parties:' Vice-Mayor Sooy: "I have a question .. " Mr. Moore: "Yes sir." Vice-Mayor Sooy: "I think I remember reading pal1 of this treatise and, isn't there, if you know, is there a case whereby which the city doesn't publish it and the person that got the variance can publish it 0 to make the clock start tickingT Mr. Moore: "That, I don't know the answer to that question, it wouldn't surprise me if that is the case ... " Vice-Mayor Sooy: "I believe it's in the same section of the treatise ... " Mr. Moore: "but, but that again it doesn't appear that that's happened, we still have a nonconforming notice, that's the only one that's been published .. ."  7 Mayor Orndorf: "that was going to be my question, has there been a conforming notice filed or reported to .. ." Brock Russell: "Well, I think that there, I think that there is a period of reasonableness that would be applied . I don't think that you could wait forever under that case the counsel cited. Now, 12 days isn't forever, but there's SOme limit, I mean even if there isn ' t a conforming notice, at some point I think you would have an obligation to file an appeal, I don ' t know when that would be, 30 days, 60 days, but there would be some period of reasonableness ... I don ' t think you'd wait 6 months or a year to do it. Counsel, I have a question for you, Mr. Norman made an argument, he said , well you know Mr. Abbott was present at the time of the hearing, which I believe took place on December 2nd of last year, he was represented by counsel, so didn ' t he have notice of the decision by virtue of that and why should he be allowed to wait until a notice is published in the newspaper and to take action at that point? I think that was the argument." Mr. Moore: "Well, I think the, the rule and the ordinance in speaking in terms of that time period beginning upon published notice, it's a, I think what it does is it creates uniformity for anyone who might be interested in appealing the decision. It doesn 't necessarily depend on whether or not the person appealing it was present at the hearing, I don't think that ' s the consideration, the consideration is whether or not the notice was published and whether that published notice conformed with the requirements under the rule . ] mean , ] can 't argue that Mr. Abbott wasn ' t present, because he certainly was, but the competing equities as we talked about in our brief with, it was a unique set of circumstances with Ms. White 's appointment as the Zoning Board Solicitor right around the crucial time when these time periods may have begun to run, I think that that's more important or at least warrants more consideration in terms of the timeliness of Mr. Abbott's appeal than the fact that he was present at the hearing." Brock Russell: "Are you familiar with Judge Winkelstein 's decision in Island Club Condominium?" Mr. Moore: "1 am not." Brock Russell: "Okay, because he cited the Toutphoeus vs. Joy Case, which is an Appellate Division Decision from 1963 and I'm reading from the citation by Judge Winkelstein and I'm old enough that I remember Judge Winkelstein when he sat on the bench in Atlantic County, but concluding that an objector's personal knowledge ofa board 's decision did not impair the objector's right to wait for fonnal publication of the notice before instituting an action for review of the decision." Mr. Moore: "I would agree with that, I think that's congruent with the argument' just made. Anything elseT Brock Russell: "Any fUl1her argument, further questions?" Mayor Orndorf: "] just, I guess I have of the question of being enable to enlarge the timeframe, would that been something of counsel to come to us with first? They ' re asking for that extension on the ] O-days:' Brock Russell: "Well, yeah, , don't think it works that way. ] think the problem that everyone has here is that there isn't a ... nonnally what we do as lawyers when there ' s a legal issue, we look at the published decisions to see if there's, the issue has occurred in another court and then if it's not one of the published decisions, now we can look at the unpublished decisions, which are not precedential and unfortunately there is no case that speaks directly to this issue, whether or not a board can enlarge the 10- day period of repose. Now, there is the Island Club Condominium case and that 's a case that was a, it was a Prerogative Writ Application, so it wasn 't an appeal directly to the board, but in that case Judge Winkelstein looked at the court rule and really talked about procedural due process and that is, you know, when is it appropriate that the notice should, period, should begin to run and I think what he discussed, if you read his decision was, that it needs to be sufficient that an interested person knows that they can go to the office of the secretary and they can read the resolution and then they can decide whether or not they want to file an appeal. That's the way he frames the consideration, now albeit that is a, that was a Prerogative Writ case, it wasn 't a case where there was a direct appeal to the board, but it would seem to me, if we' re talking about procedural due process the same principles would apply." Mayor Orndorf: "So counsel made us aware that our public, the public notification from the Board of Adjustment was inaccurate or not correct, which then the time, the clock never started ticking, technically. Had the publication ever been corrected?"  8 Brock Russell: "No, it was not and I don't believe. and by the way a pal1y to the, an applicant could submit a notice, that is something, they don ' t have to though, but they could have done it and I would think even if nobody did that, it would seem to me that a delay would have to be a reasonable one, I think if someone waited three months or, and I'm just giving arbitrary times, I don 't think that would be reasonable, you know, so I think ... " o Mayor Orndorf: "So proper notice has not been giving by the Board of Adjustment andlor the applica11l that this is on file with the City Clerk?"' Brock Russell: ''The notice said that the board had adopted the resolution, which of course is what's important because that has all the findings of fact that are of the board's decision and that notice did not say that the resolution was on file with either the board's secretary or the Municipal Clerk and was available for inspection ... ,. Mayor Orndorf: "so it's a deficient process that, notice that was not ... ·, Brock Russell: "Well at least Island Club says in the case of a Prerogative Writ Application that would not provide adequate due process to someone that wanted to challenge the decision ... ·· Vice-Mayor Sooy: "so how would you know what to appeal if you didn't have the copy of the decision ..... Brock Russell: "Well that's what Island Club says, if you read that, that's the analysis that you should, as an interested pal1y, should have the right to read the resolution and then to make a decision as to whether you want to file the appeal. You only have I O-days to do it." Mayor Orndorf: "so if it was somebody other than Mr. Abbott they may not have realized the information was available?" Brock Russell: '·well. yeah, that's possible and under Island Club, I mean it's right in the case and it cites an appellatc division case that was reported that even ifan objector is present and has personal knowledge he's still cntitlcd to rcly on the COl111 rules in the notice provisions." 0 Mr. Moore: "and just by way of brief comment, even though Mr. Abbott may have been present at the mceting and heard what was said he couldn ' t have had a copy of the resolution because it wasn't adopted at the meeting, it was adopted later so ... " Brock Russell: "and typically we all know, some people here might not know that, but normally what happens when a board votes on an appl ication there is not a resolution that gets approved at that meeting, yeah, that happens once in awhile, but it's very rare and so typically the resolution doesn't get adopted until the next meeting and that's what you really, that's what the Judge is going to look at, the Judge is goin g to wa11l to look at that resolution, he's going to want to see if they're adequate findings of fact and so that legal document normally isn't prepared until the following meeting and then the time doesn't run from the adoption by the board, it runs from when the notice goes out after the resolution is adopted. That's when the time runs." Mr. Norman : "I don't want to interrupt..." Mayor Orndorf: "Can we, I don't how we are going to ... ·, Brock Russell: "I would let Mr. Norman ... Are you finished?" Mr. Moore: " I'm finished for now." Brock Russell: "Why don't we let Mr. Norman have a brief rebuttal on timeliness." Mr. Norman: "I just think there's two points. The first poi11l is that Mr. Abbott was there, now if it was a third palty that was not at the meeting, they've got some legitimate due process argument that the o notice may have been deficient, and they can pose that argument. But, the fact of the matter is, is Mr. Abbott was there, he knew the result and he heard the conditions of approval, which are set forth in the resolution. it was not a complicated determination, he could have made arrangements to file it within 10- days and in fact, if I was Mr. Abbott's attorney, I would assume that the clerk would not make a mistake in the Notice of Decision and I would get that complaint filed timely, I wouldn't be crossing my fingers in hoping the clerk would make a mistake and it would benefit me to allow me some exira time. I really don't, I think that's a key distinction is that Mr. Abbott knew he had due process, he participated at the  9 hearing, why does he get a special benefit to appeal to the commissioners, when he otherwise wouldn't, I mean but for the ... it' s actually punitive to my client." Vice-Mayor Sooy: "Can I, may 1 ask a questionT Mr. Norman : "Sure." Vice-Mayor Sooy: "Well two things, first of all did he see the reso lution that night that the variance was granted?" Mr. Norman: "No. The resolution wasn ' t adopted until January 10''' ... '' Vice-Mayor Sooy: "he didn't, second ... " Mr. Norman: "but he knew, he knew the outcome and if he was vehemently opposed to the approval. of course before you file it you want to see the resolution, but you make, you start, you put it on your calendar and you're going to file it timely, the appeal timely ..... Vice-Mayor Sooy: "Second, you mentioned that we would be .... ' Mr. Norman: "1 would, I actually, I would, I would go flllther to call the secretary to say, is the resolution ready the day after the January 10" hearing, I'd ask for a copy of the resolution myself, I would be ... " Vice-Mayor Sooy: " He's not required to do that. CorrectT Mr. Norman : "It would be legal, I think it could be legal malpractice not to do it, to not file a timely appeal ... " Vice-Mayor Sooy: "Second, my second question is you said that if we, anybody else could file this appeal and it would be okay, but if Mr. Abbott filed it, it's not okay, because he was there ... " Mr. Norman: "because that's what, due process is, is did he have a right. This is the common sense side, these are all technical items, the common sense side of things is, is did he know of his right to appeal and, and was he on notice of when he had to file it? Yes. He knew." Mayor Orndorf: "He might not have, he's not a Municipal Land Use lawyer, he might not have been aware .. . ,. Mr. Norman: "but he had, he had an attorney at the hearing who was, who had experience in land use and that, who's now your Zoning Board's Solicitor and presumably she would say you need to make arrangements to file your appeal." Vice-Mayor Sooy: " So, to follow-up on my other question, so if anybody else that was there or anybody that wasn ' t there would have filed the appeal, it would be okay to file the appeal because they weren't there? So, who are we treating special , everybody else or Mr. Abbott? That's kind of like a balancing argument according to the court case that the counsel just brought up ... " Mr. Norman: "No, this is just ... " Mayor Orndorf(addressing members of the audience): "Excuse me, are there side comments, need to stop. Thank you." Mr. Norman : "It's just the common sense of it, the equities are a consideration in this and there was no prejudice to him by ... if any deficiency, he could have gotten that resolution, I mean when there's an important document ready to come out on January 10''', you're going to ask for it, you're not going to wait, you ' re not going to read a notice in the paper and rely upon it. You ' re just not." Vice-Mayor Sooy: " Do you know how long it takes our Zoning Board to actually get a resolution prepared ... " Mayor Orndorf: "was he giving a date that day ... "  10 Vice~Mayor Sooy: " when does that happen, does it happen one day after the hearing, fi ve days after the hearing, after somebody types up the minutes, when does that occur?" . Mr. Norman: "Oh as someone who does this and sometimes it takes more than 30 days to get a rcsol~lt'o~ done, but the statute says you're supposed to memorialize the resolution in 45 days, so my practIce I ~ I get the resolution done by the following month it's on the agenda, so it's, I mean there is a tllnehne tor getting the resolution memol'ialized .. . " Vice-Mayor Sooy: "Right, what I'm getting at is you said he could've asked for it and it may not have been done. I don't know and he probably don't know either. I don't know ... " Mr. Norman: " Well, he could ask the question and if the secretary says it's not ready, well let me o know when it's ready ... " Vice-Mayor Sooy: "okay, fair enough . .... Mr. orman: " send an email back, you kno w, it' s communication. Thank you " Brock Russe ll : " I j ust have one question for y ou Mr. Norman . Was it, you mentioned that there was no prejudice to Mr. Abbott, is there any prejudice to Mr. Thom's organization if the board were to accept the 12 day late Notice of Appeal?" Mr. Norman: "I believe so, yes." Brock Russell: "and what 1V0u id that prejudice be?" Mr. Norman: "Well the prejudice is you have to go through a full hearing process before the commissioners which is statutorily out of time. It, it increases the legal fees for my client and it was a mistake not made by my client. it was made by an administrative personnel of the township." Brock Russell: " Anything further. " Mr. Norman: " it shouldn't be prejudicial to my client, and it is." Brock Russell: "Do you want me to sum up?" o Vice-Mayor Sooy: "No we st ill have another attorney." Brock Russell: "Actually, I'm sorry I forgot about you. Miss Garty, you ' re next:' Lou Garty: "Good evening I'm Lou Garty, I was appointed to be counsel for the Zoning Board for this matter and I' ve appeared in the litigation and not to repeat what everybody said, but let's just backup on this I O-day timeframe. The I O-day timeframe is a statute and that statute is an enabling statute, which it allows local governments to do cel1ain things and what the statute says is that if a mun icipality wishes to, you can adopt an ordinance which provides for the direct appeal of a zoning board decision granting a use variance, because if they did iffor a denial, weill won ' t get into that. But so what this is, is its enabling legislation and the IO-day timeframe is governed by your ordinance, which says you have to file the appeal within 10 days . But there's a difference in terms of the standard for relaxing a timeframe for doing something hitting your mark, as Commissioner Hewitt said, under a statute as opposed to an ordinance and the learned treatise cited here, by some of the counsel, of Cox says that under an ordinance there is typically an allowance, because you're a local governing entity to relax cel1ain deadlines and usually it's for reasons of, you know, fairness and equity and there are actually some cases or that, I did find a case that permitted neighbors who knew of a zoning application and, that have been denied and the resolution was not adopted in time and the persons whose application was denied, 9 months later said, hey this resolution wasn't adopted so by default I get the approval and then stal1ed getting the permits and stuff started happening. Well, the neighbors saw things happening and 0 they adopted a new resolution saying, oop, poof it's granted and then the neighbors started objecting and the courts found under the Liza case and I can cited it for Mr. Russell or for all of you , if you wish. Liza vs. Freya?, it's a published decision by the Supreme COllrt from 1984 and they said look, the neighbors knew what was sort of going on and they filed their request out of time, but good reason was shown for doing so. So, I, there is a difference in the timelines assel1ed here and I do agree with Mr. Norman that the time that he set f0l1h calculated as to when the deadline is, is correct. The Zoning Board decision was on December 2'd, the resolution was adopted on January 5 1h, but it was not published until the 10lh and what the cOUl1S have said when you do a Notice of Decision, for example, if the board adopts or publishes a Notice of Decision or when you adopt YOllr ordinances and you adopt the, or you publish it, the  11 publication of a duly noticed decision that has to include under the statute the provision that the document adopted is in. on file with the clerk or the board to make it a timely and compliant notice. That has to be indicated in the notice for a Notice of Decision. The ord inance is silent on that. But the Cox Treatise says that, you know, you should pretty much follow what the statute says, so that it should include that notice to the public, hey, if you want to see this resolution and take a look at it, it' s on file. This did not, this notice did not indicate that and to the Mayor' s point that you made before, court cases have held that if you got a Notice of Decision which is defective, the timeline has not started yet. So, technically the timeline for the I O-day timeline to appeal has not expired yet, because it was not adopted. I think the Mayor asked a question before or Commissioner Sooy asked before, hey do applicants then publish the decision, and I' ve had that many times, where develope rs will have, you know, some type of unpopular application and they get the resolution and they' re bugging us the next month, when did you adopt it and they get it the next day signed and they publish it themselves. even though it may not be required to . So, that does happen, to answer your question from before. So, this is ajurisdictional question and I think that, you know, your solicitor is guiding you well in terms of how to deal with this, but I would urge you to make a determination of whether it was timely or not and then if it was not timely, whether you would find that circumstances exist to enlarge it and I respectfully submit that it' s only 6 days, because we ' re talking about a timeframe this small you count business days. So, this was from Friday the 20'h to the Monday the 30''', that's 6 business days. So, the question is whether that short of a period of time should permit an enlargement and the Freya case that I cited, the neighbors were late by several weeks and the court found that was within discretion, their discretion to do so. So, I hope that's helpful for you in weighting all of this, but I think the jurisdictional issue should be addressed." Brock Russell: "Any questions? Counsel?'" Vice-Mayor Sooy: "Does he get a chance to rebut any ofthatT Commissioner Hewitt: "Anything you'd like to say?" Vice-Mayor Sooy: "I'm asking ifhe should get a chance to rebut any of what she just said?" Mr. Norman: "I guess, I guess, I would argue is . .. ,. Vice-Mayor Sooy: 'Tm asking, I didn't say go ahead .. :' Brock Russell: "Why don't we hear from him . . : ' Mr. Norman: "I guess I would suggest that if the notice was defective, Mr. Abbott did file an appeal, so he certainly knew he had to file an appeal and if, the fact that he filed one shows at least he knew about the decision and he knew about the resolution. I mean, I don ' t know ifhe, what, he spent six days wondering when the resolution was going to be on file with the secretary. I don ' t think he ' s relying upon the legal notice, I think his attorney is calling the board ' s secretary is the resolution ready . That 's what I think:' Vice-Mayor Sooy: "Alright I have a question for you, Solicitor, so much of his argument is based on it 's, why it's not technically correct it comes down to common sense, but I remember watching a movie and I can't remember the movie, but it was Sir Thomas Moore and they asked him , they said you know, you ' re hiding behind a technicality in the law and his answer was, where else will you hide when the devil comes for my soul. So, are we supposed to make the decision based on technicalities and the law or are we supposed to go by common sense? Or are we supposed to use both?" Brock Russell: "Well, if you want, let me, can I answer that question generally?" Vice-Mayor Sooy: "Yeah, please. " Brock Russell: "and maybe sum up for us. I think what you have here is, you don ' t have a case that is specific to this issue. Therejust isn't one out there. However. we do have Professor Cox's Treatise and everyone that practices Land Use Law in New Jersey has this book and Professor Cox acknowledges that while there are no unpublished or published cases on the subject that in his opinion a governing body does have the right to relax the rule and I'm guided by Professor Cox. Now, there was a, the other thing that I would say is, I think that we have counsel for the applicant arguing that, well, you should relax the defective notice, or relax the rule that pertains to the notice, but don ' t relax the 10-day period of repose and to me, I think as a matter of fundamental fairness, you know, if the notice was defective and I think that it was, because I don't think it put anyone on notice that a copy of the resolution was available in the Office of the Clerk and that would trigger the 10-day notice and that'S, that' s specifically the rule set forth by Judge Winkelstein in the Island Club case and interestingly Judge  12 Winkelstein cites a rep0l1ed Appellate Division case, Toutphoeus v. Joy and that's at 81 NJ Super 526 Appellate Division 1963 that an objector's personal knowledge of a board's decision did not impair the objector's right to wait for formal publication of the notice before instituting an action or review of the decision. I think that if we look at the equities, I think you can consider the equities of the fact that Mr. Abbott's attorney because unavailable to him 5 days before the, I believe the Board of Adjustment adopted its resolution, so that's certainly something that you can consider and, but I think you have o discretion here and then you've got to decide whether or not to exercise your discretion and grant the relaxation of the rule" Commissioner Hewitt: "Ifl may before we make any other move. I guess I'm going to be the one. When I left that Zoning Board Meeting that night, I made it pretty clear on the front steps of this building that I was appealing that decision and it was impoltant enough to me that I delivered that intent to the city, to the attorney, don ' t say it. I didn't say attorneys, because I didn 't have an attorney. Never had an attorney. It was that impOltant to me, in my situation. My question is I guess, how really important was it with the relaxing of the time of actually llling this appeal? I didn't even wait; I was here like it has been mentioned for the Zoning Board Hearing. That's where I'm troubled with, it was important enough to me to stalt going right away and I did and I guess that's posed to Mr. Abbott's attorney, it probably wouldn't be correct to pose it to Mr. Abbott:' Mr. Moore: "You can barely hear me when I'm talking into this thing, you might not be able to hear me if I don't. To, if the or if Mr. Abbott feels strongly about the appeal, I can tell you that he does, we wouldn't be here otherwise. But, but, I think a, I think that fundamental fairness, not just for Mr. Abbott, but for anyone who might be in the position to also feel strongly about whether this variance was granted, deserves the 0pp0l1unity to receive proper notice of what the decision was and what the resolution, where the resolution is and what information's in it. So, I don't know if that entirely answers your question, but it certainly, I don't think that it's fair to Mr. Abbott to read anything into the brief delay in filing his pro se appeal with the board. with this body of the board's decision, particularly with those procedural difficulties that he was facing, not only with the notice of itself, but with suddenly being bereft of counsel." Vice-Mayor Sooy: "1 have another, I don't know. question/statement, so the statement common sense or legal arguments, legal technicalities. wouldn't common sense dictate that you would hear something on the merits and make a decision and not just on the timeline, if the timeline is and you know argue against it please, if the timeline is, doesn't seem to be well established or set in stone that we can't do that. Why wouldn't we proceed to the next common-sense palt of hearing an argument on the merits? o Brock Russell: "Well, you know it's a, that's called the doctrine of equitable tolling of a period of repose and basically what that means is, is that you consider the equities and I ask counsel ifhi s client would suffer prejudice if the board entertained the late notice that was filed, I think it was filed 12 days late and counsel may disagree with me on that. I don't, I don't think that's the kind of prejudice that you would be looking at. In other words, did that delay in 12 days create a situation where he sutTered prejudice. So. for example, ifhe stalted building his building or doing something like that, that to me would be prejudice. I didn't hear any prejUdice of that type; I think that' s a factor. Another factor would be everybody's entitled to access to the courts and to have their day in court and if you decide something. you don ' t want a threshold issue and not on the merits, you know. that's something that you can consider and I think you also have to consider the issue as to notice. if the notice was defective, that certainly would be an equitable basis to allow an appeal that was llled out of time by 12 days. But it's discretionary with you as to what you ' re going to do ... And as I said before, you know, this issue probably is going to be revisited by Judge Telsey.'· Commissioner Hewitt: "and with the timeliness situation. that's what we're deciding he re right now. We're deciding timeliness." Vice-Mayor Sooy: "and if we can enlarge that time. Is that correct?" Brock Russell: "That's right, because the reason you're addressing that issue now, Commissioner Hewitt, is because if you find that the application is not timely, then that's the end of what we do here today and then I think the case probably goes back to Judge Telsey and then he'll decide, he may, he may o look at the timeliness issue different than the way that we do .. ." Commissioner Hewitt: "I think everybody here realizes it, I think everybody here realizes that I'm troubled with timeliness and the way I was guided as a resident. That's my trouble, is timeliness. My other question here is, it's going to refer to f,"thcr into the night. Where's the transcript of the meeting, the original Zoning Board meeting .. • ·  13 Brock Russell: "That was provided to you and to the commissioners when this matter was scheduled ... " Mayor Orndorf: "awhile ago ... " Brock Russell: "previously before the Superior Coun case ... " Commissioner Hewitt: "through our email?" Brock Russell: "Yeah." Commissioner Hewitt: " Yeah , I son of thought maybe Mr. Abbott would supply it, I went, I guess that was my depth, you know, I supplied it up here again in written form. That was just my depth of how I did mine, that's aiL" Vice-Mayor Sooy: "So, I guess, what's left, to make a motion?" Mayor Orndorf: "Yes, we just need to make a motion on the timeliness .. ," Commissioner Hewitt : "timeliness ... " Brock Russell: "Well, the way I think it should be phrased, I think Mr, or Our Future First's attorney has made an application asking you to dismiss the appeal because it' s untimely. So, I think the motion should follow that, so yes would be a vote to dismiss the appeal as untimely; no would be a vote not to dismiss the appeaL" Vice-Mayor Sooy: " I make a motion as stated by the solicitor." Mayor Orndorf: "I'll second the motion. We have a motion and a second to ... can you restate that, because I didn't ... " Brock Russell: "Mr. Norman just stood before you and he's asking you to dismiss this appeal. He' s making an application for you to dismiss the appeal as untimely. So, yes would be to grant his application; no would be to deny his application." Mr. Norman: "Actually the appeal was filed by Mr. Abbott, he's asking for the ??? out of time ... !' Brock Russell: " Well, you have a motion sir. So, let's phrase it the way that I just placed on the record. It ' s Mr. Norman ' s motion to dismiss the appeal as umimely, so again, a vote yes is, yes Mr. Norman is correct, the appeal is untimely; no, he's wrong the appeal is not untimely and that would be to deny his motion ." Mayor Orndorf: "Okay, so we have a motion and a second. Do we need to comment or can I just. .. !l Brock Russell: "you can comment if you want ," Mayor Orndorf: "Does anybody want to have comments?" Vice-Mayor Sooy: "I'll just say this, and we talked about common sense, and I really seen no harm in us hearing it, either way it's going back to the Judge, I'm looking at the transcript from the coun. The Judge basically says exhaust the administrative remedies. This will be an administrative remedy, so why should we not exhaust it, it'll be appealed either way, we ' re not going to have the final decision ... " Mayor Orndorf: "Correct." Vice-Mayor Sooy: "That's what I think we should do. So, that 's my logic, you can agree with it or disagree it, but that's my logic." Mayor Orndorf: "Can I have roll call please?" Munic ipal Clerk Parkinson : " Commissioner Hewitt?" Commissioner Hewitt: "Yes."  14 Municipal Clerk Parkinson: " Vice-Mayor SooyT Vice-Mayor Sooy: "No." Municipal Clerk Parkinson: "Commissioner WatsonT o Commissioner Watson: ·'No." Municipal Clerk Parkinson: "Commissioner Romanik?" Commissioner Romanik: "No." Municipal Clerk Parkinson: "Mayor Orndorfl"' Mayor Orndorf: "No." Municipal Clerk Parkinson: "The motion fails." Vice-Mayor Sooy: "Can we take a recess ... " Brock Russell: "Now, before we get to the merits, 1 have a personal emergency I need to ... " Mayor Orndorf: "Can we just take a 5-minute recess, please?" Commissioner Hewitt: "I O-minute please." Mayor Orndorf: "We need a motion for a I O-minute recess please." Commissioner Romanik: "Make a motion for a I O-minute recess." Mayor Orndorf: "All in favor?" Commissioner Romanik: "Aye." Mayor Orndorf: "Thank you, come back in 10." o AFTER RECESS Legal Argument of Richard Abbott on the Merits (If Necessary) Mayor Orndorf: "Everybody good. Counsel, you ready?" Mr. Norman: "I'm ready." Mayor Orndorf: "Solicitor? Brock, you good" Brock Russell: "Yeah." Mr. Norman: "Okay. Well, on a proceeding under Section 17 of the Land Use Statute, it's supposed to be based on the entire record before the zoning board. The new evidence I heard tonight, which we have had no opportunity to investigate or rebut, it was outside the record and I believe you cannot consider it in accordance with the statute because it's outside of the record, first, and secondly in the first go around when we talked about the 10-day appeal period, the theme I heard was this case is going to the COUlt anyway regardless of the outcome, so, we should hear the appeal. My argument is, yeah, if we're going to, if that's the way you're looking at this appeal, you should hear this appeal on the merits tonight and render a determination and let the chips fall as they may on any appeal in the Superior Court or any other COUlt. And, also, you know, there's also a conflict allegation, which are outside of the record, which I wasn't going to raise tonight because they're not palt of the Section 17 statute, which was o sent on August 14"'. Those are issues of conflict. I could've raised the issue of Commissioner Sooy and your Solicitor panicipating, I did not do that because I wanted to follow the statute. If those conflict issues come into question in litigation, well maybe your decision on the 10-day is no good because that was tainted by a conflict of interest. So, I think if you want a neat package where you get a full decision on the merits, we go ahead with it, the panies reserve their rights to raise any conflict issues if it does go to COUlt and let the Judge make the call on that and that's our position."  15 Miss Garty: "So, good evening, with respect to the record below, jurisdictionally the issue of whether notice of the application is made, is a jurisdictional issue before the Zoning Board and the applicant is required to show proof of publication and proof of service and the service list includes the 200 foot list and that' s all part of the record. So, that was part of the record below and it was part of all the documentation before the Zoning Board. The fact that nobody picked up on it until perhaps recently doesn't mean it wasn't part of the record below. With respect to the potential conflict ofa voting member, if they personally were within the 200-foot list they should not participate, they should recuse themselves. If they had a close, personal family member, not the fourth cousin of the sister-in-law of the brother of the neighbor once removed. But, you know, somebody who is a parent in a family run business, that would appear to me to be something that would require recusal. With respect to counsel, the Solicitor for the Zoning Board or even here, solicitors are not voting members, so generally they' re not deemed to be requiring recusal. There are some instances where some solicitors may feel that they lead the board a great deal or they make certain comments, but that, you know, that doesn't govern, I'm not aware of reported decisions where solicitors have to recuse themselves for personal interest, but, so be that as it may. But, the board member that was all part of the record below." Mayor Orndorf: 'Thank you." Brock Russell: " What I would recommend is, you determine, well you could, I mean you can go on and have an entire hearing if you want or you could vote as to whether or not the conflict requires this to be sent back to the Board of Adjustment. .. and if that's what you're going to do, theres no point in hearing the case on the merits." Mayor Orndorf: "Yeah, if there's a conflict, if there's a conflict then it' s null and void, if that 's . . . n Brock Russell: "Well, it 's not null and void, but it's voidable, it's non-waivable, it can be raised at any time and in my view it infects the record and that ' s what we're looking at is a record that I think is defective and I think you need to have a record that doesn't have the taint of a conflict of interest and I would disagree a little bit with Miss Galty, I think that if you're an attorney and your property is within 200 feet, and I'm not 100 percent sure that his is, so, but if that's so, I would have a problem with that. But, certainly there 's no issue as to Mr. Conner having a conflict." Vice-Mayor Sooy: " Well, I think it's pretty much undisputable that Mr. Conner had the conflict, he basically said exactly what that case law said ... " Mayor Orndorf: "His statement provided, you know, how it benefited his business ... " Vice-Mayor Sooy: "It's in the transcript. .." Brock Russell: "Well, if you read the cases and the Wisokowski case, which is a Supreme Court case, and really the way the court kind of distills it down to its essence is, does the board member have a special interest in something, as an interest that's different than just a general member of the public, so obviously if I live across the street, I don't like the way the property is, because it's been vacant and I want somebody to occupy it, you know, that's an interest that you have that 's different that the public and you should step down." Vice-Mayor Sooy: " Well , I don ' t know what you guys think, but I make a motion to remand it to the Zoning Board: ' Mayor Orndorf: "Alright, so there's a motion to remand it. .. " Brock Russell: "It would be reverse the decision of the Board of Adjustment and to remand it back to the Zoning Board for a rehearing based on the conflict of interest." Vice-Mayor Sooy: "There you go." Mayor Orndorf: "Do we have a second?" Commissioner Hewitt: "My question would be to the City Solicitor, are we again just prolonging the inevitable of being back to Superior CourtT Brock Russell: "Well, you know, I'm not so sure, this interest goes away, you know, it could be raised again in Superior Court, so I think it may actually save time for the applicant. .. ··  16 Commissioner Watson: "Right, so the way, I' m so sorry if I cut you off, the way I'm seeing it is, if we decide to make a decision on this tonight, no matter what our decision could be, it's still most likely going to go to Supreme Court because of the conflict of interest.,," Brock Russell: "Well, it's going to go to the Superior Court I think, because whoever loses is going to appeal, no matter what you do, The, and even though you'd be making a new decision, you're still making it based on a record that's tainted, so I don't know that the conflict of interest issue would go away and I think in the first instance the Board of Adjustment should be hearing the case and not the governing body, Now, depending upon what they do, if there 's a right to an appeal, then we hear it at that point, but it seems to me the conflict of interest is certainly a clear one, I think it affected the proceeding and in my view I think it would be appropriate to remand the case, but you know you have to make your decision," o Vice-Mayor Sooy: "So we have the motion on the", " Commissioner Romanik: "Second the motion," Mayor Orndorf: "There's a motion and a second to remand this back to the Zoning Board to reverse the decision and to have, remand it. Okay, do we have any comments? Let's go right to ro ll call then." Municipal Clerk Parkinson: "Commissioner Hewitt?" Commissioner Hewitt: "Yes," Municipal C lerk Parkinson: "Vice-Mayor Sooy?" Vice-Mayor Sooy: "Yes," o Municipal C lerk Parkinson: "Commissioner Watson?" Commissioner Watson: HYe s," Municipal C lerk Parkinson: "Commissioner Romanik?" Commissioner Romanik: "Yes ," Municipal Clerk Parkinson: "Mayor Orndorf?" Mayor Orndorf: " Yes," Municipal Clerk Parkinson: "okay, motion carries," Vice-Mayo r Sooy: "Motion to adj ourn," Commissioncr Watson: "Make a motion." The motion was passed unanimously, Respectfully submitted, nne Parkinson, RMC City Clerk o