89 N.J.L.J. 248
April 21, 1966
OPINION 91
Zoning Board Attorney
Representing Municipality
The following inquiry has been submitted:
X is attorney for a zoning board of adjustment. Y is counsel
for the municipality. Under local zoning ordinances in certain
circumstances, approval of the governing body is required where a
variance has been granted. X has been requested to handle all
appeals in zoning matters including those where the governing body
is required to act. In some instances the governing body may
reverse the action of the zoning board. X desires to know the
propriety of representing the governing body (a) when it has
affirmed the zoning board and (b) when it has reversed the zoning
board.
Where the governing body reverses the determination of the
zoning board, can the attorney for the zoning board appear in the
courts and challenge the conclusion of his original client? What
position should the attorney adopt if the reviewing court remands
the litigation to the zoning board? He would be sitting on
different sides of the fence at different stages of the proceedings
and it would be difficult for the public to understand how a zoning
board attorney can shift his status from time to time.
This subject is more fully discussed in our Opinion 53, 87
N.J.L.J. 610 (1964) and the citations therein, where we stated that
the attorney could not change sides. Canons of Professional Ethics,
Canon 6 would be violated and hence we feel that the zoning board
attorney could not appear for the municipal body where there is a
reversal by the governing body.
Where the zoning board and the governing body have arrived at
the same conclusion, can the zoning board attorney appear on behalf
of the municipality in subsequent court proceedings?
A recent statute permits the board of adjustment of a
municipality to appoint his own attorney other than the attorney
for the municipality. P.L. 1965, c. 215 N.J.S.A. 40:55-36.1.
The problem posed raises the question whether there is
incompatibility between the two offices as a matter of law. Such
determination can only be made by our courts and not by this
Committee and hence we express no opinion on this subject.