Public or Private? Right To Counsel Of Your Choosing May Depend On Whether You Have Private Counsel Or Appointed Counsel

 by:  Peter J. Gallagher (@pjsgallagher)

I don't usually post about criminal law cases but the Appellate Division's recent opinion in  State v. Martinez hit close enough to home that I thought it was worth a few words. (I apologize for the uncharacteristically long title. Professor Cole, one of my journalism professors from college, would not be proud.)  

A few years back I was fortunate enough to be asked to represent the Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ) as amicus curiae in a case before the New Jersey Supreme Court — State v. Miller — that involved a similar issue to the one addressed in Martinez. Miller involved a defendant who was represented by the public defender's office. In the weeks and months leading up to the trial, defendant had been dealing with one public defender, but on the morning of trial a different public defender showed up to represent him. The trial court denied defendant's request for an adjournment, and forced defendant to go to trial with a lawyer he met for the first time on the morning of trial. Defendant was convicted and appealed the trial court's denial of his adjournment request. Both the Appellate Division and the Supreme Court affirmed the trial court's decision. Over an impassioned dissent from Justice Albin, the Supreme Court held that "it would have been preferable for the trial judge to have postponed the commencement of the [trial]," but that the decision to not do so was not an abuse of the trial court's broad discretion to control its own calendar and did not violate the defendant's right to counsel.

In Martinez, the facts were slightly different. Most importantly, as it turns out, unlike Miller, the defendant in Martinez was not represented by a public defender but was instead represented by private counsel. In Martinez, defendant retained a law firm to represent him and expected a specific partner from that firm to represent him at trial. However, the partner was not available on the trial date because of a conflict with another matter. It appears that both the prosecution and defense expected and agreed that the trial date would be adjourned to accomodate the partner's schedule, but the trial court refused to do so. Over defendant's objection, the trial court forced defendant to go to trial, not with the partner that he expected would handle the case, but with an associate from the partner's firm. By all accounts, the associate was capable and experienced, but defendant nonetheless objected to having to go to trial with counsel that was not the counsel he chose. 

 

Continue reading “Public or Private? Right To Counsel Of Your Choosing May Depend On Whether You Have Private Counsel Or Appointed Counsel”

Victory For Commercial Affordable Housing

by:  Katharine A. Muscalino

Private commercial developers have struggled to install affordable housing in New Jersey’s municipalities for decades, facing opposition from communities, local governments, and the municipal zoning boards.  The Appellate Division has just eased the burden of private developers by holding, for the first time explicitly, that affordable housing built by a commercial developer (as opposed to a non-profit or public entity) qualifies as an “inherently beneficial use” in Conifer Realty LLC v. Township of Middle Zoning Board of Adjustment (September 9, 2011).  By being categorized as an inherently beneficial use, commercial affordable housing is subject to a less stringent standard for obtaining use variance relief.  In support of this holding, the Appellate division noted that the courts have previously recognized that affordable housing is an inherently beneficial use in a “variety of circumstances” and that housing needs are “clearly related to the general welfare under the zoning laws.”

The Appellate Division found that the zoning board construed previous opinions holding that affordable housing is an inherently beneficial use too narrowly.  The board had maintained that because all existing caselaw had addressed affordable housing constructed by public of non-profit entities, a commercial developer’s affordable housing could not qualify as an inherently beneficial use.  The Court directed that in analyzing whether a proposed use is inherently beneficial, “the focus of the inquiry is whether the proposal furthers the general welfare, not whether the undertaking is one that is not-for-profit or a commercial enterprise.”

In addition to remanding the application to the Board for consideration under the less stringent inherently beneficial use standard (the Sica test), the Appellate Division found the Board’s concerns regarding the negative criteria to be arbitrary, capricious, and unreasonable.  The Appellate Division noted that the Board’s rejection of the application, base on density and environmental concerns, was contradicted by the Township’s Fair Share plan, which included the project, minimized the environmental impact, and promised to amend the zoning and density for the project.

Planning Board Can’t Deny Variance Based on Anticipated Inability of Applicant to Satisfy Site Plan Criteria

by:  Katharine A. Muscalino

The Bay Head Planning Board initially approved a bulk variance application submitted by a property owner who had inherited an irregular lot with just ten feet of frontage, where fifty feet was required.  Finding that denying a bulk variance for the frontage requirement would result in an undue hardship, and that the Applicant had adequately addressed concerns about emergency access to the Property resulting from the lot frontage variance, the Board approved the application with a 5-4 vote.  Per the approval, the Applicant was required to submit a drainage plan for the Borough Engineer’s approval at the time of site plan application.

Upon an objector’s prerogative writ suit, the parties discovered that a board member had voted on the bulk variance without attending all of the meetings or reviewing all of the transcripts.  The bulk variance application was remanded for a new vote, following a review of the transcripts by all of the board members.  The Board then voted to deny the bulk variance, with a 4-5 vote.  In its resolution, the Board explained that it denied application because the applicant had failed to provide “affirmative testimony… by any competent engineer… on how the applicant would address the well known drainage issues which plagued the proposed lot and more assuredly concerned the adjoining property owners.”

 

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