BY LAYLI WHYTE
Staff Writer
FREEHOLD – The next hearing on a lawsuit challenging the Red Bank Zoning Board’s approval of the West Side Lofts project has been set for Oct. 2 in state Superior Court in Freehold.
According to transcripts of the first court hearing, which took place on Aug. 29, Judge Alexander Lehrer asked that the transcripts of the project’s hearing in front of the borough Zoning Board be submitted into evidence.
Lehrer also asked Bernard Reilly, attorney for plaintiff William E. Meyer, why an official motion was never made to stay the site plan portion of the project after the state Court of Appeals ruled that board chairwoman Lauren Nicosia had a conflict of interest in what Reilly claims was a similar project application.
The suit challenging approval of West Side Lofts was filed by Reilly in April on behalf of Meyer, a Red Bank attorney, against MW Red Bank, a partnership of Metrovation Developers and Woodmont Properties, citing a conflict of interest on the part of Nicosia.
The conflict of interest cited in the suit relates to the fact that Nicosia’s father, Benedict Nicosia, serves “of counsel” at McKenna, DuPont, Higgins and Stone, law firm of Red Bank Mayor Edward J. McKenna Jr., which represented Metrovation principal Christopher Cole in a real estate transaction.
The suit claims she should have recused herself from the West Side Lofts proceedings.
Michael DuPont, a member of the board as well as a partner in the McKenna law firm, recused himself from the hearing on the application, citing a possible work-related conflict of interest. DuPont also had recused himself from hearings on an earlier application before the Zoning Board by Building and Land Technology (BLT), which was also challenged in a lawsuit, Haggerty v. BLT and the Red Bank Zoning Board, citing Nicosia’s conflict of interest.
Meyer’s claim is bolstered by the decision by the state Appellate Court in that case, which found that Nicosia did have a conflict of interest while serving as vice chair of the board during the hearing on the BLT application for a condominium and townhouse development.
Meyer represented several borough residents in the Haggerty suit, in which the appeals court ordered hearings on the application to begin anew without Nicosia’s participation. No new application has been filed to date.
At last week’s hearing Reilly argued: “What was stated [by DuPont] was that he disqualified himself because of a business and legal relationship with the applicant. That’s all anyone could have known from the record. That’s all Ms. Nicosia could have known. That should have been enough for her to step down. That’s exactly what [the Haggerty case]
says. Haggerty is clear that if Mr. DuPont is disqualified because of a work relationship, then Ms. Nicosia is disqualified because of her relationship with the firm.”
Lehrer said that although he is concerned about the board’s decision to include Nicosia in the site plan portion of the hearing after the Appellate Court’s decision in Haggerty, he is not convinced that this case is the same as Haggerty.
“This is not an easy case to decide,” he said.
James Aaron, of Ansell Zaro Grimm and Aaron, attorney for MW Red Bank, said that not only could Nicosia not have known about the specifics of DuPont’s conflict of interest, she should not have known.
“She can’t be disqualified about matters she could not and should not have known about,” he said, “because no one could go around, nor should they, telling Lauren Nicosia about who is a client of the law firm.”
Aaron also said that Nicosia’s father’s “of counsel” relationship with the firm only brought him financial gain when he brought in clients of his own.
“He eats what he kills,” Aaron said.
Aaron also said that he didn’t believe DuPont was obligated to recuse himself either.
“Under our analysis,” he said, “Mr. DuPont did not have to recuse himself. Based upon the facts, this applicant had never been represented by the DuPont firm.”
Aaron said that although Cole had retained the counsel of the McKenna law firm for a real estate transaction, he is only one principal of the applicant, and that should not obligate him to recuse himself because the applicant itself had never been a client of the firm.
“If there was not that conflict on the part of Mr. DuPont,” Aaron said, “then there could not be a conflict rising to the level of Lauren Nicosia.”
Meyer’s lawsuit only addresses the density variance portion of MW Red Bank’s application, which was heard prior to the site plan portion.
After the board approved the density portion of the application, the Meyer lawsuit was filed, citing a conflict of interest similar to that which existed in the BLT suit.
The BLT suit was heard by Superior Court Judge Lawrence Lawson, who found that Nicosia had no conflict of interest. That decision was later overturned by the Appellate Court.
Zoning Board Attorney Kevin Kennedy addressed Lawson’s decision at the first hearing for the site plan portion of the MW Red Bank application, stating that Nicosia had the right to remain sitting on the board during the remainder of the hearing for the project.
The Appellate Court decision came after the site plan portion had begun, and MW Red Bank announced that it would file a new, integrated application for the project, rather than proceed with the bifurcated application.
The applicant, however, chose to continue with the bifurcated application with Nicosia sitting on the board.
Richard Brodsky, of Ansell Zaro Grimm and Aaron, the attorney representing MW Red Bank during the hearings, said that he believed the hearings were not tainted by any conflicts of interest, and since the site plan hearings had already begun, they would continue as planned.
Lehrer asked Kennedy why he didn’t suggest that Nicosia step down after the Appellate Court’s decision was announced.
“Perhaps,” Kennedy said, “in retrospect, we should have gone back and done a do-over, but we didn’t.”
Lehrer said that he was concerned with the board’s decision to continue with Nicosia as chair after the Appellate Court decision, but that he believed that decision did not have any effect on the density portion of the application, which is the only part Meyer’s lawsuit addresses.
“What alternative did you have but to proceed with Ms. Nicosia for the density portion?” Lehrer asked. “You were following Lawson’s decision.”
Lehrer suggested that a copy of the transcript from the hearings be procured by Aaron and entered into evidence, in order to shed more light on exactly what was revealed about the conflict of interest and when.
The application for the West Side Lofts project, a mixed-use, residential/retail/restaurant development, was bifurcated into density and site plan portions before going before the board for the first time in July 2005.
After several hearings and some postponements, the board granted the density variances sought for the construction of 92 residential units, including six artist live/work lofts, and more than 13,000 square feet of retail space in December 2005.
The site plan portion of the application began last March, and those variances were granted in July by a unanimous vote of the board.