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Board Votes They Were Not Tainted by Prior Attorney as Another Rutgers Worker Recuses Himself

Planning Board Member Andy Kaplan Voluntarily Recused Himself From Controversial Mine Street Application Due to Employment With Rutgers
Andy Kaplan
Andy Kaplan leaves the Planning Board meeting after agreeing not to participate in a hearing on plans for Mine Street. Charlie Kratovil

NEW BRUNSWICK, NJ—And then there were seven.

In the latest twist in the ongoing saga of a controversial plan for a new building on Mine Street, Planning Board member Andy Kaplan became the second board member to voluntarily recuse himself from involvement.

Kaplan, who works for Rutgers University as a traffic safety engineer and lives in downtown New Brunswick, told the crowd at Tuesday's meeting he would "rather be safe than have folks argue about me in court."

Kaplan's recusal left the board with just seven members present, but a close ally of Mayor James Cahill may be waiting in the wings.

Mayor's aide and Planning Board member Kevin Jones was conspicuously absent from the proceedings, and City Councilwoman Elizabeth Garlatti already recused herself earlier this year due to her employment at the State Commission on Higher Education. 

The controversial plans for a 52-unit apartment building on Mine Street have drawn opposition from residents, students, and labor unions, and the sizable crowds forced city officials to find a larger room for the hearings, after abruptly cancelling two for being overcrowded.

Under the brighter spotlight, and with a new attorney representing them, the Planning Board attempted to tackle the proposal for a midrise apartment building on Tuesday night, in the Middlesex County Administration Building.

Construction Management Associates, also known as Premier Properties, is behind the project, after receiving the blessings from the New Brunswick Housing Authority and New Brunswick Development Corporation (DEVCO), which owns the land in question.

The board had voted to switch attorneys after Ben Bucca, who also serves as the Rutgers women's tennis coach, opted to end his involvement in the application.

After participating in previous hearings on the application, Bucca recused himself from the proceedings in response to an ethics complaint filed in August by the author of this article.

The complaint alleged Bucca, who earns a $54,000 salary at Rutgers, had repeatedly represented the board in hearings when the university was directly or indirectly involved in the application for a new development over the past two years.

Bucca is also facing allegations that he is improperly enrolled in the pension system for his city job, which pays him $41,000 to represent the city's Planning and Rent Control Boards.

Peter MacArthur alleged Bucca improperly represented the board by asking members of the public to leave the hearing room, regularly siding with the developer, leading its witnesses, and engaging in financial funny business.

Bucca had previously raised the spectre of calling the police and forcing people to leave the hearing room when opponents overcrowded the Council chambers, but later denied doing so.

MacArthur also dropped the bombshell that the company in control of the land, DEVCO, and its President Chris Paladino, made "special donations" to the team Bucca coached, shortly before the board took up the Mine Street application.

"The fact that Mr. Bucca has recused himself is not enough, respectfully," said MacArthur. "This board has been irretrievably tainted by his continued representation."

"I think the board needs to be re-constituted and the case needs to be starting over again, from the beginning, de novo."

"I had gained the impression that [Bucca] was the Chairman," said Bruce Newling, a Sixth Ward resident opponent of the project.  "This was a very confusing situation, and it created a tone and an atmosphere that was misleading."

MacArthur said the standard for whether there was a conflict that would require mandatory recusal was as follows: "In the mind of reasonable citizens that are fairly acquainted with the facts, would this scenario create the appearance of impropriety, improper influence or would it cause them to have doubts about the impartiality of the tribunal?"

"The reason for the standard is so the public does not lack confidence in the integrity of the process and its outcome," MacArthur said.

The remaining board members also entertained objections, including some lodged by the author of this article.

The objections included:

  • that a pending historic designation should prevent the hearing from moving forward
  • that the application should be heard by the city's Zoning Board of Adjustment instead
  • that there were conflicts of interest involving Planning Board Chairperson Suzanne Sicora Ludwig, who serves on the New Brunswick Democratic Organization (NBDO), and the board's new attorney Aravind Aithal, who is law partners with State Senator Bob Smith.

The developer is represented by Thomas Kelso, who represents the county government by day, and also serves as the Executive Director of the NBDO, where he regularly helps Aithal's law partner win re-election.

Kelso is the most frequent attorney to appear before New Brunswick's Planning and Zoning boards.  As we reported in May, Kelso personally represented developers in 27% of all hearings over a five-year period.

In the five years of information we analyzed, Kelso never lost a case in New Brunswick.

Earning $165,000 salary as the Middlesex County Counsel, Kelso doesn't typically loose his cool.  But he did at an April hearing of the Planning Board, where New Brunswick Today questioned the ethics of Kelso representing the developer and the county government, not to mention the NBDO.

"I do it because I'm permitted to do it under the law," he replied.  "You know that. You know you researched it. You're just creating mischief!"

With one exception, each of the jurisdictional objections were voted down 7-0 by the board.

On the topic of whether Ludwig was conflicted by virtue of her role in the NBDO, Aithal advised the board there was no conflict, garnering another unanimous vote.

"The fact that Mr. Kelso is the head of an organization that you may belong to does not in and of itself disqualify you. The affiliation has to be more than just that you belong to the same organization," said Aithal.

"There has to be some sort of overt pressure... As my position with my law firm and my partner's position as the State Senator may be a reason for disqualification if there is more that if there is something more than just that. But that allegation by itself without some specific fact beyond that is insufficient to require your recusal or my recusal."

A challenge made by the author of this article that a required member in common with the city's Environmental Commission had not been attending the Environmental Commision, did not even garner a vote.

"I wasn't sure of the facts and I want to clarify this as well.  Mr. Kratovil had indicated that the member of this board must also be a member of the Environmental Commission?   If that's in fact not the case, then we have a problem.  Is there a member of the board that is in fact a member of the Environmental Commission?"

"Yes." responded Carly Neubauer, who has attended just one of the Environmental Commission's monthly meetings more than a year ago.  She was appointed in June 2013.

"Then there would be no qualification as the board is properly constituted," said Aithal, who said no vote was necessary because that was "a fact."

"Because of personal resasons, I haven't been able to attend meetings as of late," Neubauer told New Brunswick Today after the hearing.

Board members were tremendously deferential to their new attorney, who typically represents the New Brunswick Zoning Board of Adjustment.

But it was apparent the board was having trouble adjusting to an attorney they had never worked with before.

On several occasions, after making a motion, board member Joe Catanese asked Aithal, "Is that what you want?"

Aithal referred to one jurisdictional issue, raised by MacArthur, Newling, and the author of the article, as "the taint that was brought about as a result of Mr. Bucca's prior participation before this board."

Unsurprisingly, the board voted 7-0 that they had not been tainted by Bucca, based on assertions that the developer wanted to re-start the application from the beginning.

"The application is beginning anew," said Aithal, suggesting the board has not been tainted.  "There is no taint here.  If Mr. Bucca was present... there would certainly be ongoing taint, if you will."

"If Mr. Bucca provided or continues to provide from this point forward, any advice to the board members, that would be taint," Aithal continued.

"And that would necesitate going before another body.  We don't have that here."

However, the application in question was read into the minutes as PB-2013-25, the original application number, and listed under "Old Business" on the agenda.

But Aithal's comments seemed to convey a different message.

"There is no taint from Mr. Bucca's prior participation," said Aithal.  "This is is a new application essentially, changed plans with a new attorney, and there was no final adjudication of the prior case."

"So you're saying that the objection is effectively moot basically, because of the new counsel and the new application?" asked Planning Board member David Fitzhenry.

"And the fact that there was no adjudication of that matter," responded Aithal.

"Right, we then conclude that we're sitting for a totally brand-new application with a new counsel," said Fitzhenry, before the chair asked a final question.

"I motion that the board has not been tainted by representation of Mr. Bucca prior to this," Fitzhenry then said, before the unanimous vote.