It seems that now more than ever before objectors have been raising questions during the course of planning board and board of adjustment hearings as to whether an applicant’s professional witness has a conflict and should be disqualified from participating in the application.  I explore this issue in this article and conclude that a board has no authority to decide conflicts on the part of professionals or witnesses and, in any event, a board has no authority to bar a witness from testifying or a professional from participating by reason of an alleged conflict or violation of law.

The Municipal Land Use Law (“MLUL’) expressly bars a board member from acting on any matters in which the member has a conflict of interest. N.J.S.A. 40:55D-23b and N.J.5.A. 40:55D-69 provide in relevant part that: “No member of the [planning board or board of adjustment] shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.”  In the event a board member fails to recuse himself/herself from participating in a matter in which he/she has such a conflict, these provisions of theMLIJL provide implicit authority for the board as a whole to determine that such member has a conflict and then vote to disqualify the member from participating in the matter due to the conflict.

For the full article click here: NJ Institute of Municipal Attorneys March 1996