According to accepted legal standards, "a conflict of interest creates corruption risk when an employee or contracted third party breaches the duty due to the company by acting in regard to another interest and does not advise the company of this."
It appears that the Lakewood Zoning Board attorney is eagerly paving the way for a lawsuit which would be defended at taxpayer expense.
As previously reported here on FAA News, the Zoning Board previously scheduled a Special Meeting for the purpose of hearing Lake Terrace's application for a Use Variance to legalize the use of their banquet and concert hall.
However, the meeting was cancelled by Board Attorney Jerry Dasti Esq.
Prior to the meeting, Mr. Dasti wrote to the Board advising them that their Reorganization meeting held in January did not meet the "adequate notice" requirements of the New Jersey Open Public Meetings Act as the meeting was required to be published in two newspapers and it was only published in one newspaper, and therefore all formal action taken was null. As such he advised that at the upcoming February 6 meeting, the Board reaffirm all action taken at the January meeting.
Mr. Dasti further wrote, "As a result it is my recommendation and advice that the special meeting scheduled for Wednesday, February 1, 2023 must be postponed. I have informed John Jackson, conflict Zoning Board attorney, Adam Pfeffer and Rob Shea of my opinion. All have agreed. Therefore, I suggest that Fran speak with the various representatives of the application, John Jackson etc., to schedule a new date for the hearing.
"I do believe that for all intents and purposes the spirit and language of the Statue have been met. However, to be prudent and safe, I suggest that the February 1st special meeting be cancelled and reorganized.
"In the event you have any questions or I can be of any additional assistance concerning the matter, please do not hesitate to contact me."
Attorney John Jackson is serving as Conflict Counsel to the Zoning Board on Lake Terrace's application as Mr. Dasti has a conflict in the matter (he is representing Greenwald Caterers in the related litigation).
Yet, at the same time, Mr. Dasti is writing to the Board with his legal opinion that the Special Meeting - which he has a conflict with - must be cancelled for legal reasons and that, if they have any further questions concerning the matter they can contact him!
This is a serious mess up, and opens the Board wide to litigation!
The New Jersey Appellate Division, in the 2011 case of Kane Properties, LLC v. City of Hoboken, completely tossed out government action due to a conflicts of interest of an attorney representing both sides.
In that case an attorney represented a developer before a Zoning Board which denied the application. Two weeks later the attorney was named General Counsel for that municipality. At that point, the developer filed an appeal to the municipality to Reconsider the Board's denial.
The attorney officially recused himself from the matter before the Township, however he submitted to the Township a memorandum containing generic advice about how to handle zoning appeals in general. He also sat on while the Governing Body adopted the Resolution on the matter.
Judge Reisner found that the attorney “indisputably had a conflict of interest” that “tainted” the governing body’s action. Though the attorney had recused himself, “the Council proceedings did include his participation, directly and indirectly... The attorney should have been absolutely and completely screened from this application. No advice with his name on it should have gone to the Council…. The attorney should not have been in the room when the Council was voting on the resolution, and he certainly should not have given any advice about it, procedural or otherwise…. Finally, the attorney should not have signed the resolution.”
Judge Reisner emphasized that the panel was “not holding that any ethical lapse, however unintentional and de minimus, will void the Council’s otherwise well-considered good faith vote on a zoning application.” But the attorney's failure to “withdraw completely” from the matter, when considered with all the circumstances, required reversal of the Council’s disapproval of the variances. The panel remanded to the City Council to reconsider the record, allow new oral arguments, and deliberate and decide Skyline’s appeal “as though they had never considered it before.”
The conflict of interest principles applicable to land use applications are strict, but are not new. Even a whiff of impropriety, can poison the process.
Vigilance of such principles is so much more crucial in the Lake Terrace application as no matter how the Zoning Board eventually rules the matter, the case will most likely appealed in Court and a conflict of interest in the attorney can get the Board's actions tossed out in court - all at Lakewood property taxpayers expense, of course.
In 2022, Planning Board attorney John Jackson received $156,166.67 for his contract. Zoning Board attorney Jerry Dasti received $88,928.52 for his contract.
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