Three appellate judges hear Lion Gate case

Photo by Daniel Jackovino The undeveloped Lion Gate property in a recent photo. A developer had begun work on the site, but work was stopped when the town purchased the property.
Photo by Daniel Jackovino
The undeveloped Lion Gate property in a recent photo. A developer had begun work on the site, but work was stopped when the town purchased the property.

BLOOMFIELD, NJ — A panel of three appellate judges has heard arguments from an attorney representing four township residents who claim that 2nd Ward Councilman Nicholas Joanow had a conflict of interest when he voted for a $10 million bonding ordinance that provided funds to purchase land bordering his own. The land, known as “Lion Gate,” was purchased by the town in January 2015.

The plaintiffs are residents Russell Mollica, James Wollner, Chris Stanziale and former Bloomfield Mayor Raymond McCarthy. Their attorney, Mark Maryanski, asked the panel to reverse a lower court decision which ruled that Joanow had no conflict of interest and to void the bonding ordinance. The 45-minute hearing took place in Newark Superior Court on Wednesday, Sept. 21. Joanow and the township, which is a co-defendant, were represented by Kevin McManimon.
When Judge Jose Fuentes asked Maryanski if the purchase of the land would produce a monetary gain for Joanow, Maryanski answered that money did not matter.

“It’s the public perception,” the lawyer said.” That’s enough to disqualify the councilman.”
Fuentes asked if the council could reconvene, and Maryanski said that it could, and that public confidence would benefit from this.

According to Maryanski, when the developer who owned Lion Gate was before the Bloomfield Planning Board for approval of a 102-unit residential development plan for the site in 2013, Joanow had asked two neighbors to attend the meeting and oppose the plan. Joanow had a long history of opposition to Lion Gate being developed, said the lawyer, even before he sat on the council.

Maryanski also said that, before the vote was taken at the second reading of the bonding ordinance on Aug. 11, 2014, a resident had asked the township attorney to offer his opinion as to whether Joanow had a conflict of interest, if he were to vote. The township attorney at the time, Brian Aloia, said he was not asked for his opinion by Joanow.

“Joanow didn’t ask because he didn’t want to know the answer,” Maryanski told the judge, adding that the councilman, “knew of the conflict. Public perception is the compelling interest and it cries out for judgement. What message will this court send? That ethics are to be respected, or rules can be played loosely and circumvented?”

McManimon disagreed that Joanow had a conflict of interest, saying, “Local government ethics law says there is no conflict if the councilman will not benefit more than the public.”

“Even if the councilman is voting on it? And the alternative is a development?” the judge asked, and McManimon replied affirmatively to both questions.

Maryanski, in his brief and when he addressed the court, had referenced a NJ Supreme Court decision involving a conflict of interest in a Montclair Township Council vote for an amendment to a zoning ordinance. The decision, which recognized a conflict of interest, supported his contention that Joanow had the same problem when he voted for the bonding ordinance.

But McManimon disputed this in court, saying the law to which Maryanski referred was not applicable. In his own brief, he said that when a councilman votes on a zoning ordinance he is governed by stiffer laws than when voting on a bonding ordinance. The laws are different because voting for a zoning ordinance is quasi-judicial while voting for a bonding ordinance is legislative and the laws give more leeway, he said.

But when McManimon said in court that Maryanski was relying on a misinterpretation of the law, Judge Marie Simonelli said the issue was not about zoning ordinances, and Judge Harry Carroll asked the lawyer if it made a difference to public perception whether the conflict of interest involved a zoning or a bonding ordinance.

“Yes,” McManimon said. “It was a public park. It was the provision of something positive.”
“Positive to whom?” Simonelli asked. “You’re making a blanket statement that everyone would want a park. Some people might want ratables.”

Fuentes said ethic laws have an objective standard, adding, Joanow “has property adjacent to the property, either a public park or a development. Isn’t that clearly a conflict of interest? The land was to be subject to a bond issue. He has a history of opposition to development. If he lived somewhere else, no problem. But he lived adjacent to the property. Maybe his judgement was impaired.”

“You say that public benefit outweighs a conflict of interest?” Simonelli asked.
“The public benefit swallows the rule.” Fuentes said. “The councilman was affected more than anyone.”

But McManimon said that how much Joanow was affected could not be determined and that Joanow’s vote was governed by the less stringent rules of a councilman voting for a bonding ordinance, adding, “It wasn’t fraud.”

But, according to Fuentes, the issue was now fraud, saying “It’s public perception. Did it affect him disproportionately? Would you rather live next to a park or a 102-unit development?”
“That’s debatable,” McManimon said.

Carroll said the township was aware that the lower court decision was going to be appealed before it purchased the property, but it went through with the sale anyway. “Why shouldn’t we consider they took that action at their own peril?” Carroll asked.

McManimon referenced case law supporting his assertion that once the bonds were issued, their validity could not be challenged and an appeal was moot and not permitted.
But Fuentes said common sense would dictate that if an appeal was filed, the town should not proceed with the purchase, adding, “Local ethics laws have to mean something.”

According to McManimon, the plaintiffs could have filed papers with the court to stop the purchase but did not, and the township was free to proceed. He argued that the appeal became moot when the property was purchased. Fuentes said McManimon should have filed court papers saying an appeal was moot, thus dismissing the plaintiffs’ case.

In a telephone interview earlier this week, Maryanski acknowledged that if Joanow and the township were to lose the appeal, the council could simply go back and vote to pass the bond ordinance again and, if they had the votes — without Joanow’s participation — nothing would actually change.

McManimon, in a telephone interview earlier this week, agreed with Maryanski that, if Joanow and the township lost the case, the council could pass the bond ordinance a second time.
“Every other solution would hurt the township,” he said.

McManimon said he did not think it mattered that he hadn’t filed papers asking that the case be dismissed, because the land had already been purchased.

“Fuentes was suggesting we should have moved in January 2015,” he said. “My response is, what difference does it make? It’s still moot. What he was asking was not required. He was just asking why we did not do it.”

According to the attorneys, the appellate judges’ decision will likely be issued in a few months.