Opinion
DOCKET NO. A-2182-13T4
03-26-2015
ANTHONY W. GRACEFFO and JOAN M. GRACEFFO, Plaintiffs-Appellants, v. THE ZONING BOARD OF ADJUSTMENT OF THE BOROUGH OF POINT PLEASANT BEACH, Defendant-Respondent.
Anthony J. Graceffo argued the cause for the appellants. Dennis M. Galvin argued the cause for the respondent (The Galvin Law Firm, attorneys; Mr. Galvin, of counsel and on the brief; Steven M. Gleeson, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Haas and Higbee. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-1280-13. Anthony J. Graceffo argued the cause for the appellants. Dennis M. Galvin argued the cause for the respondent (The Galvin Law Firm, attorneys; Mr. Galvin, of counsel and on the brief; Steven M. Gleeson, on the brief). PER CURIAM
Plaintiffs, Anthony Graceffo and Joan Graceffo (Graceffos), applied to obtain variances to build an addition on a house located on the boardwalk, in Point Pleasant Beach. After a hearing, the Zoning Board of Adjustment of the Borough of Point Pleasant Beach (Board) denied their application. In response to the Board's decision, plaintiffs filed a complaint in lieu of prerogative writs, challenging the decision and alleging the Board violated the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. The court affirmed the Board. We now reverse and remand, finding the Board's conduct in violation of OPMA.
We need not repeat all the facts, but briefly summarize them as follows. Plaintiffs owned property located in Point Pleasant Beach in an area zoned for one-story homes. In 2012, plaintiffs applied to the Board for variances, pursuant to N.J.S.A. 40:55D-70(c)(2) and N.J.S.A. 44:55D-70(d)(6).
On October 18, 2012, the Graceffos appeared before the Board and presented their application. They testified that they wished to make the house more accessible by removing an existing pool and deck to make room for a garage and elevator. Various other additions were proposed, including a new rooftop deck, more bedrooms, and a bathroom.
At this first hearing, the Board expressed a variety of concerns, including potential effects on the neighboring homes. Specifically, the Board noted the possibility that the addition would block the neighbors' sunlight. It also expressed concern with the proposed rooftop deck, which could be used for parties, and disturb the neighboring residents. Additionally, the Board was concerned that the proposed addition would exceed fifty-percent (50%) of the value of the house, requiring compliance with FEMA flood standards. Finally, the Board noted the lack of a landscaping plan.
Despite the above concerns, the Board carried the matter to February 21, 2013. Prior to the public meeting on that night, the Board members arrived early and met in private with their engineer. All Board members have signed certifications that they did not specifically discuss plaintiffs' pending application at that time, or any other application that was before them. However, they candidly admit that they met with the Borough's engineer in private before the public hearing, and discussed FEMA regulations and their applications. They viewed this as an "education session."
At the public meeting that followed, plaintiffs addressed some of the Board's original concerns. They provided amended plans for the roof and provided a landscaping plan. However, under the amended plans, the proposed length of the house was increased by four feet, contrary to the Board's concern that the structure was already too large. The Board found it surprising that based upon its concerns regarding the massing and size of the home, the applicant would increase the size of its proposal. Moreover, the Board was still concerned that the improvements would exceed fifty-percent (50%) of the value of the property, necessitating FEMA compliance.
At the conclusion of the hearing on February 21, 2013, the Board unanimously voted to deny plaintiffs' application. The Board memorialized its decision in a resolution, which stated in pertinent part:
12. The Board suspects that the proposed improvements will exceed 50% of the value of the existing house and necessitate FEMA compliance.
13. The Board was concerned that the house will not be in compliance with the FEMA regulations. The bottom level walls would have to be removed to be above the base flood elevation. The entire existing structure would have to have break away walls or all of it would have to be built on piles.
. . . .
17. The Board found that this proposal will create a house that is too high, has too much massing, and is too crowded for this area.
[(Emphasis added).]
After the variances were denied, the Graceffos filed their Complaint, alleging (1) the Board's decision denying their application for variances was arbitrary, capricious, and unreasonable, and (2) the Board held private and closed meetings in violation of OPMA. Thereafter, the Law Division affirmed the denial of the variances, and held the Board did not violate OPMA. This appeal follows where we address only plaintiffs' allegations that the Board violated OPMA.
The Open Public Meetings Act requires public officials to grant the public access to its meetings, except for nine well-delineated exceptions addressed in N.J.S.A. 10:4-12(b). To fulfill the legislative purpose of open access, the act must be construed liberally and exceptions construed strictly. See Mountain Hill, L.L.C. v. Middletown, 399 N.J. Super. 486, 499 (App. Div. 2008); see also Rice v. Union Cnty. Reg'l High Sch. Bd. of Educ., 155 N.J. Super. 64, 70 (App. Div. 1977), certif. denied, 76 N.J. 238 (1978). Under the statute, a "meeting" is defined as:
any gathering . . . which is attended by, or open to, all of the members of a public body, held with the intent, on the part of the members of the body present, to discuss or act as a unit upon the specific public business of that body.Additionally, "public business" is defined by OPMA to include all matters that "relate in any way, directly or indirectly, to the performance of the public body's functions or the conduct of business." N.J.S.A. 10:4-8(c).
[N. J.S.A. 10:4-8(b).]
The Legislature included a statement of purpose in the body of OPMA, which reads as follows:
The Legislature finds and declares that the right of the public to be present at all meetings of public bodies, and to witness in full detail all phases of the deliberation, policy formulation, and decision making of public bodies, is vital to the enhancement and proper functioning of the democratic process; that secrecy in public affairs undermines the faith of the public in government and the public's effectiveness in fulfilling its role in a democratic society, and hereby declares it to be the public policy of this State to insure the right of its citizens to have adequate advance notice of and the right to attend all meetings of public bodies at which any business affecting the public is discussed or acted upon in any way except only in those circumstances where otherwise the public interest would be clearly endangered or the personal privacy or guaranteed rights of individuals would be clearly in danger of unwarranted invasion.
[N. J.S.A. 10:4-7.]
In discussing OPMA, our Supreme Court in South Jersey Publishing Company v. New Jersey Expressway Authority, emphasized this State's commitment to public participation in government. 124 N.J. 478, 490 (1991). The Court found that:
In substantially amending the law in 1975, N.J.S.A. 10:4-6 to -21, the Legislature strengthened the public's right to attend meetings of public bodies by requiring that "all meetings * * * be open to the public at all times". N.J.S.A. 10:4-12(a). The Act permits executive sessions only for meetings concerning specifically-enumerated subjects of discussion, N.J.S.A. 10:4-12(b), the public discussion of which would endanger the public interest or cause an unwarranted invasion of personal privacy or other
individual rights. N.J.S.A. 10:4-7; see also 10:4-12(b) (list of subjects for which executive session is authorized). Before the public is excluded from such a meeting, the public body must adopt a resolution at a public meeting stating generally the subject to be discussed and, "as precisely as possible, the time when and the circumstances under which the discussion conducted in closed session of the public body can be disclosed to the public." N.J.S.A. 10:4-13.
[Ibid.]
In this case, plaintiffs argue the Board violated OPMA because they held a closed meeting prior to the hearing. At oral argument before the court, plaintiffs' counsel stated:
Well, it's a gathering of all the members, and it's a meeting . . . . So a member of the public has no way of ever knowing other than what they say they're going to do. So to me that conduct is completely contrary to the intent of the Open Public Meetings Act. The appearance of impropriety is just as bad as the impropriety itself.
And if they're actually discussing the things that they are saying, like how to apply the law, what the legal standards are on this case, and if their attorney or their engineer is . . . educating them as it may apply to a specific application that they're going to hear, it's even more relevant that that be done in public.
Despite plaintiffs' argument, the trial court found the Board did not violate OPMA because the gathering was not a "meeting" as the Board did not discuss any "specific" public business. We disagree with the court's narrow interpretation of OPMA and find that holding a closed-door meeting prior to a public meeting creates a perception of impropriety, and undermines public trust. Here, the private meeting of the Board clearly included a discussion of an issue which the members knew was relevant to the application pending before it that night. Notably, the importance of FEMA concerns in relation to plaintiffs' application was demonstrated when the Board's counsel stated on the public record at the open portion of the meeting that, "We have a flood hazard ordinance and what we've learned over time is that FEMA holds us very accountable to grant any variances for that. So my advice to the Board is, don't do it . . .
Additionally, the findings of fact by the Board in its resolution denying the application twice referred to FEMA concerns. Obviously, the Board's understanding of a potential FEMA problem was a factor in its decision on this application, even if not the primary one. The fact that concerns about FEMA compliance were also discussed in the public portion of the meeting, as well as in private, does not cure the OPMA violation.
Here, the Board has stipulated that none of the nine enumerated exceptions that allow a closed executive session apply. Although the judge correctly found that "chance encounters of members, or partisan political caucus meetings" are not covered by OPMA, the private meeting here was neither of these. Instead, this was a meeting of all members to discuss the specific public business they are appointed to handle, namely zoning. The Board was instructed on how FEMA regulations might interact with a pending zoning decision, even if the application was not mentioned by name.
The trial court cited various cases in support of its finding that there was no "meeting" in this matter. We find these cases distinguishable. In Downtown Residents for Sane Development v. City of Hoboken, the members of the City Council, along with hundreds of other citizens, attended a boat ride hosted by a developer, who made a presentation providing information about his proposed development. 242 N.J. Super. 329, 341-42 (App. Div. 1990). On these quite different facts, we found no violation of OPMA, holding the boat ride attended by hundreds was not a "meeting" of the public body under the OPMA. Ibid.
We also find Mountain Hill, supra, to be clearly distinguishable. 399 N.J. Super. at 389. That case dealt with a political caucus meeting attended by members of only one political party, who discussed an application in terms of its potential effect on votes. Id. at 392-93. At the same meeting, held at a non-members home, many other political issues were discussed. Id. at 507-08. The caucus meeting included non-committee members as well as members, and was not attended by all members of the township committee. This particular type of political gathering is specifically allowed under OPMA, and is very different than what occurred in this case. See N.J.S.A. 10:4-7.
Although the Board members appear to have believed they were acting in compliance with OPMA, and the result may have been the same regardless of the violation, the consequences of non-compliance are mandated within the legislation itself. N.J.S.A. 10:4-15(b) states:
Any party, including any member of the public, may institute a proceeding in lieu of prerogative writ in the Superior Court to challenge any action taken by a public body on the grounds that such action is void for the reasons stated in subsection a. of this section, and if the court shall find that the action was taken at a meeting which does not conform to the provisions of this act, the court shall declare such action void.
In Precision Industrial Design Company v. Beckwith, where a violation of OPMA was found, we held that "there is no alternative to the voiding of the resolution . . . ." 185 N.J. Super. 9, 14 (1982). In the same case, we recognized that a violation of the law does not mean automatic approval of an application. Id. at 18. OPMA itself allows the opportunity for corrective action by the local governmental body. N.J.S.A. 10:4-15(a).
We therefore reverse the Law Division's finding that OPMA was not violated and remand the matter back to the court to enter the appropriate order voiding the Board's decision and returning the matter to the Board for the appropriate corrective action. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION