“Despite Court Opinion, Board Members, Should Disclose Reasons for Vote”

By Dennis M. Galvin, Esq.
Printed in the Summer 2004 edition of the New Jersey Planning Officials' publication, The New Jersey Planner

Every experienced Board member of a Planning Board or a Zoning Board of Adjustment, knows the importance of putting their comments in support of their decision on the record. To be fair, there are cases we hear every week that are so obvious on their face that it is difficult to spend quality time reciting the obvious benefits or detriments. In such cases, the resolution becomes essential to explaining and defending the decision of the Board.

In Scully-Bozarth v. Burlington City PB (Scully), referred to as the 'tank case' in this publication, the Appellate Division ruled that a well drafted resolution is enough to support a Board's decision. The Court reasoned that when the Board adopts its memorialized resolution, it also adopts its own findings and conclusions as set forth by the Board's attorney. The dissenting Judge in the Scully case, however, made clear that the failure of the Board to articulate its reasoning on the record was cured, not by the well-drafted resolution but by the subsequent comments made by the Board during the re-hearing of the matter.

The dissenting judge also feared that the findings in Scully might undermine the important public policy of having Board members set forth their reasoning on the record.

Remember that when deciding "applications for development," Boards are acting as quasi-judicial bodies. The requirement of setting forth findings of facts and conclusions of law is inherent in the role of the Judiciary. This is the cornerstone of the faith we place in our courts, because, with detailed information and findings, decisions are given that we can understand, even though we may not agree with the result. The Judge, by exposing his logic, shows us that the Court's decision was impartially and fairly rendered, based on the facts and the law as the Court saw it.

The Courts consistently acknowledge that Board members know their community best and can best make decisions as to the facts in a given case. The arbitrary, unreasonable and capricious standard of review is based upon the belief that a Board's actions are presumptively correct.

Thus, for a Board to have its decision affirmed, however, it is critical that members spell out for the record why and how they decided the case. Boards that are clear as to their reasoning, are seldom reversed. The NJ Supreme Court in Kramer v. Sea Girt, set forth: "Courts cannot substitute an independent judgment for that of the boards in areas of factual disputes. So long as the power exists to do the act complained of, and there is substantial evidence to support it, the judicial branch of the government cannot interfere.

"A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable. Even when doubt is entertained as to the wisdom of the action, or as to some part of it, there can be no judicial declaration of invalidity in the absence of clear abuse of discretion."

While the Scully decision provides protection to board who have failed to set forth their reasons, it would be wrong for boards to routinely abdicate their decision-making functions to the attorneys. When the Board is totally reliant on counsel to draft the perfect resolution, we all should be concerned with the motives and inspiration in such decisions.

In the absence of comment or deliberation, it is possible that a decision was made arbitrarily or with some improper purpose in mind. If a reviewing Court draws this conclusion, the Court may remand the action or reverse the decision of the Board with a clear conscience. For sound public policy, we need well-educated Board members to weigh the facts against the law and draw reasonable conclusions.

While most boards have their "Deans of the Board," who seem to guide decision-making, it remains important that other Board members make comments or at least acknowledge their agreement, thus assuring the reviewing court that the resolution represents the sentiments of the full Board.

This is especially true in complex or controversial matters. When these procedures are supported by a competent resolution, no Court may justly reverse a Board's action.