At the last two City Council meetings, the city’s governing body has pulled an ordinance that would require developers seeking variances for projects to first disclose all of the campaign donations they have made. Variances are requests from the Zoning Board to deviate from existing development guidelines.
Supporters of the ordinance say it is an effective step toward good government. Those who oppose the legislation say that, while well-intentioned, it could make someone believe that he was denied a variance because of his contributions.
The ordinance is based on a model created by Common Cause, a national nonprofit, nonpartisan citizens’ lobbying organization promoting open and accountable government. According to Harry Pozycki, the Chairman of Common Cause New Jersey, nearly 100 out of New Jersey’s 566 municipalities have adopted some form of Common Cause legislation.
The ordinance that was pulled from the City Council’s agenda stated that all developers seeking "D" variances from the city’s Zoning Board must disclose all political contributions that they have made in the past year on their application for the variance. A "D" variance is the most extreme variance that the Zoning Board has the authority to grant. According to New Jersey state statute, it is needed when a developer wants to change the use of property or wishes to build to a height or density that is not provided for in the city’s zoning codes. This type of variance can only be granted by an affirmative vote of at least two-thirds of the Zoning Board.
"We’re all familiar with the campaign finance issues," said Hoboken resident John Glasel Wednesday. Glasel was the first person to approach Mayor David Roberts’ administration with Common Cause’s model ordinance. "To many people there is an appearance that politicians are beholden to those that finance their campaigns."
Glasel added that this ordinance would make government more transparent, which is especially necessary, he said, in a city that is well-known for having a large number of developers who contribute heavily to political campaigns.
The city’s attorney, Esther Suarez, said Wednesday that the proposed ordinance is redundant and opens the city up to being sued.
"By putting this on the application [for a variance] it gives the appearance that [contributions] are a criteria for granting applications," said Suarez Wednesday. "[Campaign contributions] should have no bearing on whether or not a variance is granted."
She added that all campaign contributions are public record and can be accessed on-line at www.elec.state.nj.us. "The city shouldn’t have to flip the bill on litigation that could very easily be avoided," said Suarez. She also pointed to the fact that only a fraction of the cities in the state have a similar law. "I have no interest in the city of Hoboken being a test case for this ordnance," she said.
Pozycki responded that because campaign contributions are already public record, this ordinance is not "terribly adventurous" when it comes to the issue of legal liability. He added that of the almost 100 municipalities that have adopted Common Cause legislation, not a single lawsuit has been filed against any of the cities in reference to any of the adopted ordinances.
He also said that the ordinance in question was drafted with the assistance of William M. Cox, Esq., a leading authority on New Jersey land use law and author of New Jersey Zoning and Land Use Administration.
"This ordinance is simply designed to determine whether merit or money is the deciding factor when [the city’s Zoning Board] approves a major variance application," said Pozycki Thursday.
Mayor David Roberts said Wednesday that he fully supports Suarez’s conclusions and the council’s decision not to go forward with the ordinance. "The city attorney has made a very compelling argument," said Roberts. "There are lawyers out there who would argue [in court] that a client was denied a variance because he did not make a campaign contribution." The mayor also reiterated that fact that all contributions are fully accessible and part of the public record.
But not everyone on the council agrees with the mayor’s stance.
Soares says he was ‘ordered’ to withdraw it
Councilman Tony Soares said Tuesday that he was "ordered" by the mayor before the June 19 meeting to withdraw the ordinance from the agenda despite his support for it. The June 19 meeting was the last meeting that Soares was to serve as council president. "I don’t think it is right that the mayor should be stopping ordinances," said Soares. He added that this legislation is especially pertinent to Hoboken because development is such a large issue. "Every law has pro and cons," said Soares. "But in this case the pros significantly outweigh the cons."
Glasel contends that Suarez’s and the mayor’s explanations are nothing more than window-dressing. "It’s just a lame excuse," said Glasel. "They just want to keep the money flowing the way that it has been."
Councilman A. Nino Giacchi, a lawyer himself, said Wednesday that the city could, in fact, have serious liability issues to contend with. He said that while on the surface the ordinance seems altruistic, in reality there are some problems.
"It’s a double edged sword," said Giacchi. He said that one developer might think he was slighted because he gave money to a certain politician, while another might feel slighted because he did not give money to a certain politician. "All of those variables put everyone in such a precarious position. The upshot is that there might be litigation against the city just because of this one provision."
Even some members of the Zoning Board, the only body that this ordnance would affect, have come out in opposition.
"I fear people will be second-guessing every decision made by the board," said Zoning Board Chairman John Branciforte Wednesday. "I don’t necessarily want the public to think that we are making decisions based on political contributions. It makes the board look political. Bringing politics into a board that is supposed to be non-political is counterproductive."
Branciforte added that the Zoning Board is one of the least political boards in the city because no elected officials or city employees are allowed to sit on it.
The Hoboken movement for campaign finance reform comes on the heels of a well-publicized national and statewide movement. At the end of June the state senate passed the "Pay-to-Play" bill. If the bill passes the assembly, it would prohibit contributions by certain businesses and licensed professional business entities that contract with the state of New Jersey for goods and services in excess of $17,500 per year.
The bill also would place a $5,000 campaign contribution limit on those business entities to all legislative and gubernatorial candidates, office holders, political action committees and legislative leadership committees. Finally, the legislation would require any businesses that receive more than $50,000 a year in state or county contracts to file an annual disclosure form with the Election Law Enforcement Commission (ELEC).
State Sen. Bernard Kenny (D-Hoboken) abstained from voting on the bill.