91 N.J.L.J. 262
April 25, 1968
and Planning Boards
An attorney presently serving as attorney for a municipal
planning board inquires whether he may accept the position of
attorney for the board of adjustment of the same municipality.
In Opinion 67, 88 N.J.L.J. 81 (1965), we said that "a municipal attorney cannot serve as attorney for any board or agency of the same municipality if there is or may be a conflict of interest in a particular situation." (Emphasis added)
In Opinion 112, 90 N.J.L.J. 365 (1967), we pointed out that a municipal planning attorney could not even represent his wife in personally objecting to the granting of a variance. We said:
...our law reports are replete with cases where planning boards, boards of adjustment and governing bodies have not always been in accord on request for variances. In this case, if the board of adjustment granted a variance, the matter might be referred back to the planning board for action, in which case the inquirer obviously would have a conflict of interest. Or, if a subdivision were required, planning board approval would have to be obtained under N.J.S.A. 40:55-1.24.
In Opinion 117, 90 N.J.L.J. 745 (1967), we said that a municipal attorney could not serve as legal adviser to the municipality's planning board in the preparation of a master plan where "the prospect of differences of opinion as to policy between the planning board and governing body is not so remote as to be discounted, ... ."
In Opinion 91, 89 N.J.L.J. 248 (1966), we said that a zoning board attorney could not without violation of the Canons of Professional Ethics appear for the municipal body in a zoning appear where the municipality had reversed the decision of the board of adjustment.
The potential danger of conflict inherent in representing distinct but independent municipal agencies has been criticized by our Supreme Court, Schear v. Elizabeth, 41 N.J. 321 (1964); Dolan v. DeCapua, 16 N.J. 599 (1954); Wilson v. Long Branch, 27 N.J. 360 (1958).
The attorney states in his inquiry:
As attorney to the Board of Adjustment, I am required to give certain legal opinions and legal rulings on matters that are pending before the Board or on applications that are being heard before the Board. Many of these applications [sic] have already appeared before the Planning Board and many of these are referred to the Planning Board for such things as site plan approval, parking lay-out approval and the general approval of the Planning Board or as required by the Zoning Ordinance of the municipality.
In a real sense, then, many of the matters that are heard before the Board of Adjustment are also presented to the Planning Board sometimes before they come to the Board of Adjustment and sometimes after they have been to the Board of Adjustment.
In this factual context, where each agency is referring matters to the other and where the likelihood of discord is present, there would be a conflict of interest if the same attorney were to advise both boards on a matter wherein they differ.
It is therefore our opinion that it is improper for the attorney in this situation to represent both the zoning board and the planning board. It is not the function of this Committee to decide whether there is incompatibility between the two offices as a matter of law. Such determination can only be made by our courts.