The state Supreme Court is being asked to reinstate a zoning board’s grant of use variances because the city’s reversal of that grant was informed by advice from a lawyer with a conflict of interest.
At stake in Kane Properties v. Hoboken, A-96/97-11, is the future of a planned 12-story residential building, which the owner of a nearby condominium tower claims would block its residents’ views of Manhattan.
The problem, says the developer, is that during the course of the contested zoning case, the lawyer for the condo association was appointed Hoboken Corporation Counsel — which seems to have doomed the project.
Hoboken’s Board of Adjustment approved the variances in December 2009. Two weeks later, while the Skyline Condominium Association was appealing the decision, its lawyer, Michael Kates, of Hackensack’s Kates Nussman Rapone Ellis & Farhi, was named Hoboken’s in-house counsel.
Kates recused from the matter but did give the city council some generic advice on handling appeals of board rulings. Soon afterward, the city council voted 5-3 to overturn the board’s grant.
"There is a fundamental fairness component to this case," the developer’s lawyer, Arnold Mytelka, argued to the court on Tuesday, saying council reviews of board of adjustment decisions are "quasi-judicial proceedings that must be as untainted as a court."
Mytelka, representing Kane Properties LLC, wants the court to overturn the city council’s decision rather than just uphold an Appellate Division ruling that remanded the case to the city council for further hearings.
Chief Justice Stuart Rabner asked what was wrong with weighing in with generic advice.
"There is no innocuous advice," Mytelka replied.
"He should have abstained?" Rabner asked.
"He was the lawyer for the appellant," Mytelka said. "He should have steered clear of it completely. There are no ministerial acts."
Justice Jaynee LaVecchia asked what would be wrong with sending the matter back to the city council "with fresh counsel."
"Don’t send it back to the very same body that was tainted," said Mytelka, of Springfield’s Kraemer Burns, noting the council’s make-up is largely unchanged since the decision under appeal.
Conversely, Edward Buzak, the city’s outside counsel, says Kates’ advice was so "ancillary" that there was no clear conflict of interest.
"There was a conflict of interest," said Buzak, of the Buzak Law Group in Montville. "That’s why he recused."
Rabner said it did not appear that the court should be looking to see if the proceedings were tainted. Instead, he asked whether the court should be analyzing an appearance of impropriety problem.
Buzak said the issue was whether the city council’s decision was affected by Kates’ minor role, and there was no evidence that it was.
Justice Anne Patterson said that, at least for a brief period, Kates was the only lawyer involved.
"He answered a procedural question" and nothing more, Buzak said.
Justice Barry Albin said there did appear to be a general issue of an appearance of impropriety.
Buzak disagreed. "Mr. Kates was not [in the council chambers] for this matter," he said. "There should be no direct involvement" by the court.
Kates’ involvement in the case was this: On Jan. 11, 2010, he signed a form letter confirming the filing of Skyline’s appeal, scheduled a hearing date and asked the parties to identify any possible conflict issues. On Jan. 13, Mytelka wrote to Kates, objecting to his giving the city council advice and asking whether he intended to recuse. Kates did recuse, and on Jan. 22, Buzak wrote to Mytelka, confirming his retainer to advise the city in Skyline’s appeal.
On Feb. 5, 2010, Kates sent the city council a memorandum laying out advice about how to handle zoning appeals in general. The memo did not refer to Skyline’s appeal.
After the council vote overturning the grant of variances, Mytelka filed the lawsuit, alleging Kates’ continuing involvement in the matter amounted to an improper conflict of interest that could have tainted the council’s action.
Hudson County Superior Court Judge Bernadette DeCastro dismissed the suit, but the Appellate Division, in a published ruling, reversed, finding the conflict of interest clear. The judges declined to order the city council to reverse itself, since they could not state that Kane was entitled to prevail. However, they remanded the matter to the council for another hearing.
Rabner asked Buzak on Tuesday what the remedy should be if the court sided with Kane. Buzak said that at most, the dispute should be remanded to the council as the appeals panel directed. •