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Further Developments in Land Use Ethics Salkin, Patricia E; Stakey, Darren . The Urban Lawyer ; Chicago Vol. 47, Iss. 4, (Fall 2015): 739-753.
ProQuest document link
ABSTRACT
In the Aloha State, an email exchange between counsel for the University of Hawai'i and a hearing officer,
regarding the approval of a Conservation District Use Application (CDUA), was deemed an impermissible ex parte
communication.19 Litigation began shortly after the State of Hawai'i transferred eighteen acres of land to the
University, on condition that the land was being set aside for creation of the Haleakala High Altitude
Observatory.20 The University of Hawai'i Institute of Astronomy, accordingly, secured a permit to install a Solar
Telescope, but Kilakila ?O Haleakalâ (KOH), "an organization dedicated to the protection of the sacredness of the
summit of Haleakala[,] opposed [the application] ... to build on the project site" and demanded a stay and a
contested case hearing, which was eventually ordered by Hawai'i's high court.21 KOH then sought, unsuccessfully,
to disqualify Board of Land and Natural Resources advisor and Deputy Attorney General Linda Chow, due to her
prior representation of the Board in a related proceeding against KOH.22 Around this time, the Board announced
that it was aware of an impermissible email sent by the assigned contested hearing officer, Steven Jacobson, to
counsel for the University.23 In the email, Jacobson stated that the offices of the Governor and of United States
Senator Daniel Inouye had been pressuring him into making a quick recommendation to grant the permit, and
asking counsel for the University, "So, my question for you is whether any of you had anything to do with what the
Senator's and Governor's offices were doing.\n107 The appellate court concluded that the attorney committed
numerous violations of New York's Rules of Professional Conduct, including: "engaging in conduct involving
dishonesty, fraud, deceit or misrepresentation; .. . engaging in conduct that is prejudicial to the administration of
justice; and . . . engaging in conduct that adversely reflects on his fitness as a lawyer. FULL TEXT
Patricia E. Salkin* and Darren Stakey**
I. Introduction
Ethical considerations continue to play a fundamental role in shaping the course of land use and developmental
regulatory proceedings throughout the country. From an innocuous donation by one public official to his alma
mater,* 1 to the outright bribery of a former mayor,2 the past year has been rife with a range of conduct implicating
professional responsibility and land use.
II. Conflicts of Interest
A. Attorney Conflicts
In an unpublished per curiam opinion, a New Jersey appellate court found that it was not a conflict for an attorney
to accept the endorsement of his former client, then-mayor, for a municipal attorney position, and that, similarly,
the mayor had not acted improperly.3
A complaint was first filed against Scott M. Alexander, the thenmayor of the Borough of Haddon Heights, alleging
that he "violated the Local Government Ethics Law by proposing and supporting [a candidate for] Borough[]
Solicitor" who had represented him in a family law matter.4 With the mayor's support, the Haddon Heights Borough
Council undertook a public vote and resolved to allocate an annual retainer for Robert Gleaner, the attorney, which
covered "attendance at public meetings . . . and his 'interactions' with officials and citizens," and set "an hourly rate
of $150 for litigation or special projects."5 The now-former mayor defended the endorsement of his personal
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lawyer in a letter, responding that the Advisory Committee on Professional Ethics of the New Jersey Supreme
Court already ruled that "an attorney is ethically permitted to represent a municipal official in any matter that is
unrelated to the municipality."6 Further, the mayor contended that there were no situations flowing from Mr.
Gleaner's municipal representation in which a "direct financial or personal involvement . . . had impaired [either
party's] objectivity or independence of judgment."7
In reviewing the matter, the Legal Finance Board decided that the relationship between the mayor and the solicitor
was too attenuated "to constitute a 'prohibited] involvement' and could not 'reasonably be expected to impair' the
Mayor's 'objectivity or independence of judgment.' "8 On appeal, the Superior Court of New Jersey, Appellate
Division, concurred with the Finance Board that the relationship between the mayor and his lawyer "was 'too
tenuous' to support a violation."9 The court also found nothing unusual with regard to the attorney's fees charged
and noted that nothing in the record tended to suggest that the prior representation affected any public interest
pertaining to the municipality.10
In Connecticut, allegations of impropriety were rejected where the father of a zoning board chairperson's son-in-
law served as personal attorney for an applicant whose request for variances was approved.* 11 The original
application submitted to the Fairfield Zoning Board of Appeals was for variances that would "permit the
construction of a single-family residence on [an] unimproved parcel" in a flood plain zone.12 Ultimately, however,
the applicant, through his lawyer, sought permission to construct a three-story commercial building entirely within
the flood zone.13 At the "close of a public hearing, the Board ... approve^] the requested variances" and "the
decision was published in a newspaper."14 Eight residents appealed the decision and the Superior Court of
Connecticut, Judicial District of Fairfield, held that five of the residents had standing due to the close proximity of
their property to the subject parcel.15 Though the court determined that the applicant's property was not entitled
to preexisting nonconforming use status because the previous use had been abandoned for several years, it
rejected the argument that the affirmatively-voting chairman of the Zoning Board of Appeals had a conflict of
interest simply because the father of his son-in-law was the applicant's attorney.16 The court asserted that
"municipal governments would be seriously handicapped[] if any conceivable interest, however remote or
speculative, would require the disqualification of a zoning official," and because there were no personal or
pecuniary interests implicated by the subject matter of the application, or any relationship with any of the parties
who were before the Zoning Board of Appeals, no violation had occurred.17 Further, as the chairman was not
directly related, by blood or marriage, to the applicant and was not a part owner of the parcel in question, "the fact
that his daughter [was] married to the son of the personal attorney and cousin of an owner to the property [was]
too attenuated" a basis upon which to maintain a personal interest claim against the chairman.18
B. Ex Parte Communications
With increasing frequency, communications have triggered ethical inquiries this past year. In the Aloha State, an
email exchange between counsel for the University of Hawai'i and a hearing officer, regarding the approval of a
Conservation District Use Application (CDUA), was deemed an impermissible ex parte communication.19 Litigation
began shortly after the State of Hawai'i transferred eighteen acres of land to the University, on condition that the
land was being set aside for creation of the Haleakala High Altitude Observatory.20 The University of Hawai'i
Institute of Astronomy, accordingly, secured a permit to install a Solar Telescope, but Kilakila ?O Haleakalâ (KOH),
"an organization dedicated to the protection of the sacredness of the summit of Haleakala[,] opposed [the
application] ... to build on the project site" and demanded a stay and a contested case hearing, which was
eventually ordered by Hawai'i's high court.21
KOH then sought, unsuccessfully, to disqualify Board of Land and Natural Resources advisor and Deputy Attorney
General Linda Chow, due to her prior representation of the Board in a related proceeding against KOH.22 Around
this time, the Board announced that it was aware of an impermissible email sent by the assigned contested
hearing officer, Steven Jacobson, to counsel for the University.23 In the email, Jacobson stated that the offices of
the Governor and of United States Senator Daniel Inouye had been pressuring him into making a quick
recommendation to grant the permit, and asking counsel for the University, "So, my question for you is whether any
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of you had anything to do with what the Senator's and Governor's offices were doing."24
At the conclusion of the hearing, the Board approved the CDUA to build an astronomical observation tower and
denied KOH's posthearing motion for disclosure of all other communications surrounding the Solar Telescope,
maintaining that pressure placed on Jacobson "did not influence the outcome of his decision," while nevertheless
discharging Jacobson for his impermissible ex parte communication and striking Jacobson's work product from
the record.23 KOH appealed to the Intermediate Court of Appeals of Hawai'i, which held, among other things, that
"any impropriety was cured when the Board discharged Jacobson and appointed [a new hearing officer]."26
However, the case is still ongoing, as KOH's writ of certiorari was granted by the Supreme Court of Hawai'i and has
been scheduled for oral arguments.27
Back on the mainland, in Oregon, the mere appearance of impropriety created by ex parte communications was
insufficient to vitiate a land use board proceeding, when an approved plan to build a gas pipeline was later
reconsidered.28 This dispute ripened when the Oregon Pipeline Company's petition to build a forty-one mile long
segment of natural gas pipeline, initially approved by the Clatsop County Board of Commissioners, was appealed
to the Land Use Board of Appeals (LUBA) by parties who opposed the application.29 While the appeal was still
pending, three new commissioners were elected to Clatsop County's Board, one of whom had openly discussed
rejection of the pipeline plan.30 Before the LUBA was even provided the record for appeal, "the [Bjoard-with its
three newly elected commissioners- voted to withdraw its approval [of the application] and reconsider [the]
decision."31 The withdrawal was immediately challenged "through a mandamus action in the circuit court[,] . . .
[but] ft]he circuit court dismissed" and the Supreme Court of Oregon declined to review.32
On reconsideration, the Board denied the pipeline application in a 4-1 vote.33 The Oregon Pipeline Company
appealed, alleging that Commissioner Peter Huhtala had campaigned against the pipeline as part of his election
platform and that his bias had tainted the proceeding.34 The Company cited more than a half-dozen remarks
Commissioner Huhtala had made, including statements in opposition to land use approvals for a downstream
distribution channel to market the natural gas and a comment that "[i]t could become the policy of the Port of
Astoria that we oppose the construction of a liqu[e]fied natural gas facility anywhere in the Columbia River Estuary
and direct staff to do everything possible to make that happen."35 Nevertheless, based on the totality of his
statements, the Court of Appeals of Oregon found that Commissioner Huhtala never "explicitly, or by necessary
implication, committed] to an irrevocable position on the merits of [the pipeline] application."36 Thus, actual bias
was not established and the mere appearance of bias created by his ex parte statements was insufficient.37
Moving from natural gas to water, ex parte communications made to officials in Connecticut were deemed
sufficient to render a public hearing unfair.38 There, a member of the Enfield Planning and Zoning Commission,
named Lori Longhi, was accused of illegally orchestrating the denial of an application to construct a thirty-eight
unit residential subdivision.39 Longhi had been a social friend of one of | Villages, LLC's] owners, Jeannette
Tallarita, and her husband, former Mayor, Patrick Tallarita, but since had a falling out and was now alleged to have
"arbitrarily predetermined the outcome" of the applications based on her "personal animus."40 The rift began when
Longhi accused then-Mayor Peter Tallarita of using his influence to affect the outcome of Commission decisions
in a way adverse to Longhi's interests.41 Now, with Patrick Tallarita acting as counsel for Villages, LLC, Longhi
stated that "she wanted [Tallarita] to suffer the same fate of denial by the commission that she had suffered," and
engaged in ex parte communications with an official from the Hazardville Water Company to discuss the issue of
whether there was sufficient water pressure for the fire department to extinguish a blaze at the subdivision.42 The
trial court found that Longhi, who "played a significant role in deliberations[] and voted to deny the . . .
applications," had a conflict of interest due to her bias against Tallarita.43 The Appellate Court of Connecticut
agreed, noting that "evidence of bias may be cumulative," and ruled that Longhi's ex parte comments were harmful
and deprived Villages, LLC of a fair hearing.44
C. Pecuniary Conflicts
Two contrasting cases from New Jersey last year addressed what does and does not create a pecuniary conflict of
interest. First, it was not a conflict for the Chairman of the Lakewood Township Planning Board to make a donation
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to the school from which he graduated, Beth Medrash Govoha of America, a specialized graduate level educational
institution, even though the school was subject to Board review and approval for its expansion plans.45 Neighbors
residing across from the proposed development decried the Board's approval as being biased, using as evidence
the recent donation made by the Chairman and the fact that another board member was also an alumnus of the
school.46 On appeal, the challenging neighbors relied on a New Jersey Municipal Land Use provision that
"prohibitfs] any member of [a] planning board" from taking part in a "matter in which [the member] has . . . any
personal or financial interest."47 The Superior Court of New Jersey, Appellate Division, upheld the Board's
conclusion that no violation was committed affirming the Board's approval of the academic expansion.48
Things turned out very different in another part of New Jersey for Pemberton Township Councilmember Sherry
Scull, who voted on the salaries of twelve supervisory positions, including the water superintendent, despite her
husband's employment with the Pemberton Township Water Division.49 The Township Solicitor's office
investigated Scull's affirmative vote for the Communications Workers of America Salary Ordinance after "the public
questioned whether [Scull] should have recused herself from voting on the contract."50 The Solicitor's office ruled
that the appellant had no conflict of interest.51 But, the Local Finance Board also lodged a complaint, alleging that
Scull violated the section 40A-9-22.5(d) of the Local Government Ethics Law.''2 The Board ultimately issued a
Notice of Violation and concluded that both Scull and her husband stood to gain from the ordinance, which might
have "impairfed their] objectivity or independence of judgment."53 Scull requested a hearing to contest the
determination, and an administrative law judge ruled that Scull had indeed violated the Local Government Ethics
Law when she voted to increase the salary of her husband's direct supervisor.54 Scull appealed to the Superior
Court of New Jersey, Appellate Division, which ruled that, even if Scull did not specifically intend to use her office
for the benefit of her husband, the key issue was the existence of the conflict.55 Scull should have recused herself
and, by not doing so, her vote "presented the potential to undermine the publicf's] confidence in the objectivity and
impartiality of the local government in violation of [the Ethics Law]."56
D. Proprietary Conflicts
A line of advisory opinions from California this past year may help practitioners to draw that ethical line between
right and wrong for conflicts of interest created by property ownership. The California Fair Political Practices
Commission weighed in on a potential conflict implicating San Luis Obispo City Council Members Dan Carpenter
and John Ashbaugh, who both owned real property within the boundaries of an area where the City Council was to
award a grant that would impact their property values.57 The Legal Division of the Commission advised that any
government decision directly affecting a financial interest in real property is presumed to be material, unless
"rebutted by proof that it is not reasonably foreseeable" to have "even a 'penny's worth'" of an effect on the
property's value.58 As both council members owned property directly within the General Plan Land Use and
Circulation Elements grant zone, both had prohibited conflicts of interest, and neither could participate in the
decision until each of their conflicts was resolved by the City Council using either segmentation and screening, or
a random selection process.59
In light of this advisory opinion, it seems clear that owning property in an area subject to development creates a
conflict of interest for the public officials charged with approval or rejection of that development. But, what if a
public official just rents the property subject to development? That is exactly the issue that the California Fair
Political Practices Commission grappled with next, when the propriety of Davis City Councilmember Robb Davis
was called into question last year.60 Davis was newly elected and had rented a loft for a one-year term in "the
downtown core area of Davis."61 The potential conflict arose quickly, as there were a number of projects near
Davis' rented residence slated for consideration.62
Using the standard of reasonable foreseeability, the Legal Division of California's Fair Political Practices
Commission reasoned that Davis' leasehold did not "have a material financial effect on [his political] interest" in the
development, because Davis' lease was nonrenewable.63 Thus, even if Davis were to negotiate a new lease in the
same space after the expiration of his current term, the councilmember would have no present conflict of interest
in debating and voting on projects that directly affected the value of the property he leased.64
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Another issue still: what if the public official owns the real property, but the property is located within 500 feet, and
not directly within, a zone subject to land use approval? The California Fair Political Practices Commission dealt
with this issue too during the last year.65 The request for advice spurring this advisory opinion concerned
Cupertino City Councilmember Barry Chang, whose home lay within 500 feet of the accompanying land dedication
for a proposed eight and one-half acre residential development to be approved by the City Council.66 The issue
was that the development could adversely affect Chang's "pristine" view, as well as the councilmember's property
value.67
Beginning with the "penny test" analysis, the Commission's Legal Division noted that a public official has a conflict
of interest if "the government decision in which he or she participates has a 'reasonably foreseeable material
financial effect' on [the official's personal] interests"- even a "penny's worth."68 Then, surprisingly, the Legal
Division seemed to abandon its cut-and-dry materiality test in favor of a more conjectural analysis, stating that
financial effect cannot be measured merely by actual change in property value, but that "the analysis must also
address how the potential for change is altered."69 After contacting a property appraiser to get more information
on the potential for change in local property values over time, the Commission concluded that Councilmember
Chang was not conflicted because the exact placement of homes within the development had yet to be
determined; Chang's property was oriented to the east of the city lights, not the west; and because Chang's view of
a ridge beyond the nearby picturesque canyon would not be obstructed by the new construction.70
Examining the foregoing advisory opinions together, a clearer picture of what is considered ethically permissible in
California emerges. For a public officer, it is considered a disqualifying conflict to own property subject to land use
regulation by the governing body to which that authority figure belongs. Yet, there is no conflict if the official
merely has a leasehold interest in the same property. The issue becomes thornier when real property is adjacent to
an area of development. As of now, it would seem as though real property interests as close as 500 feet do not
necessarily disqualify owner-politicians. This assessment comports with another advisory opinion issued by the
California Fair Political Practices Commission last year, which opined that there was no conflict of interest for a
board member, whose property was located within 500 feet of a newly proposed project to address flood control
and other measures, to participate in the matter despite an acknowledged collateral personal effect.71
III. Recusal and Disqualification
A. Partial Recusal
Following the denial of an "application to use a portion of their property for storing wrecked and impounded
vehicles," Jimmy and Jill Lewis of Siloam Springs, Arkansas, appealed, arguing "that a recused board member's
continued participation in the application process deprived them of their due[]process rights."72 Kenneth Knight,
one of the neighbors disputing the Lewis' plan to open a towing business out of their home, was subsequently
appointed to the Benton County Planning Board and openly voiced his opposition to the permit application during
a Technical Advisory Committee meeting.73 Under a section entitled "general public comments," minutes from this
meeting reveal that Knight's concerns were "the decreased properly values [the towing facility] would cause, the
increased traffic through the neighborhood, the nuisance created by lights and noises, and possible water
contamination."74
Knight did not attend the first public hearing in which the interested application was discussed and recused
himself on the day of the vote.7'1 Still, Knight did join other neighbors in speaking against the proposed use of the
land during the Planning Board meeting, after attending the meeting in an official capacity, and participating in the
roll call.76 The Board thereafter rejected the application in a 5-1 vote.77 On appeal, the Benton County Circuit Court
found "that although it probably could have been done differently, Knight did not abuse his discretion as a Planning
Board member."78 The Court of Appeals of Arkansas affirmed, showing that, in this part of the country, there is no
prohibited conflict where a planning board member recuses himself from voting, but participates in the discussion
of a conflicted issue.79
B. Total Disqualification
In Missouri, a faulty removal did not deprive the federal court of jurisdiction to disqualify counsel.80 The City of
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Greenwood had been in a dispute with Martin Marietta Materials (Martin) over a rock quarry located south of the
city.81 The law firm of Zerger &Mauer LLP served as Greenwood's counsel throughout the litigation and racked up
over $4,000,000 in fees by the time the case was ultimately settled. The settlement consisted of Martin paying
Greenwood $7,000,000 in exchange for truck access to Second Avenue and Greenwood declaring that quarry
traffic was reasonable and did not constitute a nuisance.82
Not long after this settlement, Zerger &Mauer agreed to represent "eighteen individual plaintiffs who held property
interests on Second Avenue ... in [a] Missouri state court [action] against Martin," which sought "damages l'or a
private nuisance, among other claims."83 Martin removed the case and the district court, believing it had
subjectmatter jurisdiction, entertained Greenwood's prompt motion to disqualify Zerger &Mauer on the ground that
the current representation was a conflict of interest.84 "The district court agreed with Greenwood and .. .
disqualified Zerger &Mauer," which appealed.85
The United States Court of Appeals for the Eighth Circuit found that the district court lacked jurisdiction to hear the
case, yet upheld the attorney disqualification.86 The appellate court reasoned that "the district court's inherent
need to manage its bar and uphold the rules of professional conduct [were] no less significant for the
'maintenance of orderly procedure' than .. . Rule 11 sanctions," which were within the district court's authority.87
Further, because resolution of Greenwood's motion to disqualify was separate from the substantive case, "the
jurisdictional infirmity did nothing to disturb the district court's order."88
The court went on to cite Missouri Rule of Professional Conduct 4-1.9(a), which "outlines the duties an attorney
owes [to] former clients:
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the
same or a substantially related matter in which that person's interests are materially adverse to the interests of the
former client unless the former client gives informed consent, confirmed in writing.89
Accordingly, the Eighth Circuit ruled that the district court's disqualification order was appropriate.90 Of course,
the order only governed Zerger &Mauer's representation in the federal proceeding and will likely become an issue
again when the matter heads back to state court.91
South Dakota was the location of another interesting debate implicating ethics and land use last year. There, the
Eastern Farmers Cooperative (EFC) was granted a conditional use permit to build and operate an agronomy facility
on approximately 60 acres of land located a few miles north of Colton, South Dakota.92 The facility would store,
distribute, and sell a variety of farm products, including anhydrous ammonia.93 The Hansons, whose residence
was situated across from the proposed facility, appealed and, at the appeal hearing, Minnehaha County
"Commissioner [Dick] Kelly disclosed that he had toured [a similar] facility [operated by EFC] and was impressed by
the safety measures in place."94 Following the County Commission's unanimous decision to uphold the approval
of the permit, the Hansons sought de novo review before the Second Judicial Circuit in Minnehaha County.95 After
holding a trial and hearing evidence, the circuit court found that Commissioner Kelly's tour of the related facility
"constituted an [impermissible] ex parte communication that disqualified his vote."96 However, finding no evidence
of bias with the remaining three votes, the court left the decision intact, holding that the Hansons' position would
not have changed because the vote was unanimous.97 The Supreme Court of South Dakota agreed that
Commissioner Kelly's disqualification did not require a new hearing and affirmed the circuit court's invalidation of
Kelly's vote as a sufficient remedy to cure the alleged due process concerns arising out of his participation in the
hearing.98
IV. Bribery, Censure, and Malpractice
The law firm of Cozen O'Connor P.C. found itself embroiled in a dispute with a former client over its representation
in a zoning matter.99 The Cherry Hill Market Corporation pleaded two causes of action in its complaint, alleging
that Cozen O'Connor "provided inadequate and ineffective representation because [their] 'objectives' in the zoning
matter were not achieved, and because a summary-judgment motion was not filed by the court-imposed deadline
in the unrelated litigation."100 The trial court, however, dismissed the complaint without prejudice due to
insufficient allegations as to proximate cause, and because the claim for ineffective representation in the zoning
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matter should have been brought as legal malpractice instead of common law negligence or breach of fiduciary
duty.101 The appellate court agreed and applauded the trial court for "providently exercising] its discretion."102
Elsewhere in New York last year, after a career spanning more than fifty years, one attorney's gross neglect of a
client matter led to a formal investigation and censure.103 The Grievance Committee of New York filed a petition
against Attorney J. Michael Shane alleging that, in 1986, he agreed to represent a client on a contingent fee basis
against a municipality to recover damages for zoning regulations that reduced the value of the client's
business.104 Shane stipulated that, "in July 1986, [he] falsely informed [his] client that papers had been served on
the municipality."105 From 1986 through 2012, Shane misled his client into believing that he "was prosecuting the
matter, and [he] bolstered those misrepresentations with . . . false documents, [which] include[ed] a purported
court order and notice of appeal."106 Over the years, Shane manufactured a myriad of excuses for the substantial
delay until finally confessing to the client, in July of 2012, that he had never actually filed the claim.107 The
appellate court concluded that the attorney committed numerous violations of New York's Rules of Professional
Conduct, including: "engaging in conduct involving dishonesty, fraud, deceit or misrepresentation; .. . engaging in
conduct that is prejudicial to the administration of justice; and . . . engaging in conduct that adversely reflects on
his fitness as a lawyer."108
Determining that censure was the appropriate sanction, the appellate court highlighted several mitigating factors,
including the attorney's "otherwise unblemished record," the fact that the attorney "did not commit the misconduct
for personal gain or profit," that the attorney voluntarily "self-reported [his] misconduct to the client," and that the
attorney expressed remorse.109 Attorney Shane also fully cooperated with the Grievance Committee's
investigation, and there was no proof that the client suffered an actual financial loss.110 According to the court, it
appeared that the lawyer was just trying to avoid telling the client that his claim lacked merit.1"
Finally, bribery did not pay off for a lawyer-turned-politician who traded permits for payoffs in New Jersey.112
During his campaign, and after being elected Mayor of Hoboken, attorney Peter J. Cammarano, 111 accepted
monies from a cooperating witness disguised as a developer.113 For a $25,000 fee, the mayor agreed to
"expedite!] zoning approvals for unspecified construction projects."114 Arrested after just a month in office,
Cammarano resigned as mayor and pled guilty to one count of conspiracy to obstruct interstate commerce by
extortion under color of official right.115 The now-former mayor was ordered to make restitution of $25,000 and
sentenced to two years in federal prison, to be followed by two years of supervised release.116
"On the basis of the criminal conviction, the Office of Attorney Ethics (OAE) filed a motion for final discipline with
the Disciplinary Review Board."117 Though "[t]he OAE recommended disbarment ... a four-member majority of the
[Board] voted [instead] to impose a three-year . . . suspension" because Cammarano did not orchestrate the
scheme.118 The Supreme Court of New Jersey then granted the OAE's petition for review and ordered
Cammarano's disbarment.119
New Jersey's high court rebuked Cammarano, calling his actions "so patently offensive to the elementary
standards of a lawyer's professional duty that they per se warranted] disbarment," and announced that "[g]oing
forward, any attorney who is convicted of official bribery or extortion should expect to lose his license to practice
law in New Jersey."120 Thus, despite Cammarano's previously unsullied reputation, service to the community,
contrition, and rehabilitative efforts, "ordering any discipline short of disbarment [would] not be keeping faith" with
the court's duty to the public.121
V. Conclusion
The Land Use Ethics Committee of the ABA Section on State and Local Government Law strives to stay current by
continually reviewing and discussing relevant cases and opinions from around the country that implicate
professional responsibility and ethical practices in land use decision making. To ensure that land use proceedings
remain fair and transparent, we invite readers to assist in this effort by contributing to the discussion.
Footnote
1. Shain v. Lakewood Twp. Plan. Bd., No. A-6335-11T3, 2014 WL 1613668 (N.J. Super. App. Div. Apr. 23, 2014).
2. In re Cammarano, 219 N.J. 415 (N.J. 2014).
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3. Scoblink-O'Neill v. Loc. Fin. Bd., Dep't of Cmty. Affairs, No. A-4754-11T4, 2014 WL 6802452, at *3 (N.J. Super.
App. Div. Dec. 4, 2014).
4. Id. at *1.
Footnote
5. id.
6. Id.
7. See id.
8. Id. at *2.
9. Id. at *3.
10. See id.
11. See Coppola v. Zoning Bd. of Appeals, No. CV116023195S, 2014 WL 2055635, at *7 (Conn. Super. Ct. Jan. 22,
2014).
12. Id. at *1.
13. Id.
14. Id. at *2.
Footnote
15. See id. at *2-3.
16. Id. at *5-6.
17. See id. at *6-7.
18. Id. at *7.
19. See Kilakila ?O Haleakalâ v. Bd. of Land &Nat. Res. (KOH II), No. CAAP-13003065, 2014 WL 5326757, at *3
(Haw. Ct. App. Oct. 17, 2014), cert, granted, No. SCWC-13-0003065, 2015 WL 114807 (Haw. Jan. 7, 2015).
20. See id. at *2.
Footnote
21. Kilakila 'O Haleakalâ v. Bd. of Land &Nat. Res. {KOH I), 317 P.3d 27, 29, 40 (Haw. 2013) (internal quotation
marks omitted).
22. KOH II, 2014 WL 5326757, at *2.
23. See id.
24. Id. at *2-3.
25. Id. at *5.
26. Id. at *24.
27. Kilakila 'O Haleakalâ v. Bd. of Land &Nat. Res. {KOH III), No. SCWC-130003065, 2015 WL 114807, at *1 (Haw.
Jan. 7, 2015).
28. See Columbia Riverkeeper v. Clatsop Cnty., 341 P.3d 790, 804 (Or. Ct. App. 2014).
Footnote
29. Id. at 794.
30. See id. at 793.
31. Id.
32. Id. at 793 (citing State ex rel. Or. Pipeline Co. v. Clatsop Cnty., 288 P.3d 1024 (Or. Ct. App. 2012), rev. den., 299
P.3d 889 (Or. 2013)).
33. See id. at 794.
34. See id. at 793.
35. See id. at 804-05.
36. Id. at 808.
37. Id. at 809.
Footnote
38. Villages, LLC v. Enfield Planning &Zoning Comm'n, 89 A.3d 405, 416-17 (Conn. Ct. Äpp. 2014).
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39. See id. at 407-08.
40. Id. at 408.
4L See id. at 408-09.
42. Id. at 408-09 (alteration in original).
43. Id. at 408.
44. Id. at 414, 416-17.
45. Shain v. Lakewood Twp. Planning Bd., No. A-6335-11T3, 2014 WL 1613668, at *1-2 (N.J. Super. App. Div. Apr.
23, 2014).
Footnote
46. See id. at * 1.
47. Id.; see N.J. Stat. Ann. §40:55D-23(b) (2015).
48. Shain, 2014 WL 1613668, at *2.
49. See Scull v. Loe. Fin. Bd., No. A-4786-11T4, 2014 WL 2440783, at *1 (N.J. Super. App. Div. June 2, 2014).
50. Id.
51. Id.
52. See id.
53. Id. (quoting the Board's Notice of Violation).
54. Id. at *1.
55. Id. at *5.
Footnote
56. Id.
57. Cal. Fair Political Practices Comm'n Advice Letter, No. A-13-160, 2014 WL 764125, at *1-2 (Feb. 10, 2014).
58. Id. at *4.
59. Id. at *7.
60. See Cal. Fair Political Practices Comm'n Advice Letter, No. A-14-175, 2014 WL 5797812, at *1 (Oct. 20, 2014).
61. Id.
62. Id.
Footnote
63. See id. at *2, 4.
64. See id. at *4-6.
65. See Cal. Fair Political Practices Comm'n Advice Letter, No. A-14-167, 2014 WL 5797808, at *5 (Oct. 8, 2014).
66. Id. at *1-2.
67. See id. at *5.
68. Id. at *3.
69. See id. at *5.
Footnote
70. Id. at *4-5.
71. Cal. Fair Political Practices Comm'n Advice Letter, No. A-14-053, 2014 WL 1498287, at *5-6 (Mar. 26, 2014).
72. Lewis v. Benton Cnty., 436 S.W.3d 181, 181 (Ark. Ct. App. 2014).
73. Id. at 182.
74. Id.
Footnote
75. Id.
76. Id.
77. Id.
78. Id. at 183.
79. See id. at 184-85.
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80. Zerger &Mauer LLP v. City of Greenwood, 751 F.3d 928, 930 (8th Cir. 2014).
81. Id. at 929.
82. Id. at 929-30.
83. Id. at 930.
Footnote
84. Id.
85. Id.
86. Id. at 931.
87. Id.
88. Id.
89. Id. at 932; see also Missouri Rules of Prof'l Conduct §4-1.9(a) (2007).
90. Zerger &Mauer LLP, 751 F.3d at 935.
91. Id.
92. In re Conditional Use Permit No. 13-08, 855 N.W.2d 836, 838 (S.D. 2014).
93. Id.
Footnote
94. Id.
95. Id at 839.
96. Id
97. Id
98. Id. at 845.
99. Cherry Hill Mkt. Corp. v. Cozen O'Connor P.C., 118 A.D.3d 514, 514 (N.Y. App. Div. 2014).
100. Id
101. Cherry Hill Market Corp. v. O'Connor, No. 154292/12, 2013 WL 1783552, at *1-3 (N.Y. App. Div. Apr. 22, 2013).
102. Cherry Hill Mkt. Corp., 118 A.D.3d at 515.
Footnote
103. In re Shane, 117 A.D.3d 117 (N.Y. App. Div. 2014).
104. Id. at 118.
105. Id.
106. Id. at 119.
107. Id. at 118-19.
108. Id. at 119.
109. Id.
110. Id. at 119-20.
111. Id. at 120.
112. In re Cammarano, 98 A.3d 1184, 1185 (N.J. 2014).
Footnote
113. Id.
114. Id at 1186.
115. Id at 1185-86.
116. Id at 1185.
117. Id
118. See id at 1185, 1187.
119. Id.
120. Id at 1187-88.
121. Id. at 1189.
AuthorAffiliation
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* Dean and Professor of Law, Touro College Jacob D. Fuchsberg Law Center; chair of the ABA State and Local
Government Law Section's Committee on Ethics in Land Use.
** 2015 graduate of Touro College Jacob D. Fuchsberg Law Center; N.Y. Pro Bono Scholar, inaugural class; clerk to
Chief Justice Saylor of the Supreme Court of the Commonwealth of Pennsylvania. DETAILS
Subject: Attorneys; Ethics; State court decisions; Colleges &universities; Professional
responsibilities; Conflicts of interest; Local government; Extortion; Bribery; Public
hearings; Cooperation; Land use; Interstate commerce
Publication title: The Urban Lawyer; Chicago
Volume: 47
Issue: 4
Pages: 739-753
Number of pages: 15
Publication year: 2015
Publication date: Fall 2015
Publisher: American Bar Association
Place of publication: Chicago
Country of publication: United States, Chicago
Publication subject: Law, Public Administration
ISSN: 00420905
Source type: Scholarly Journals
Language of publication: English
Document type: Feature
Document feature: References
ProQuest document ID: 1774579251
Document URL: https://search.proquest.com/docview/1774579251?accountid=8289
Copyright: Copyright American Bar Association Fall 2015
Last updated: 2016-05-03
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- Further Developments in Land Use Ethics
