QUESTION: Does the NJ Herald have a conflict?

On Sunday, the NJ Herald ran an editorial titled:  Franklin caught on a slippery slope.”  The newspaper contended:

“By voting again on an already approved ordinance, Franklin officials surely are taking the issue down a slippery slope that is bound to slide right into a courtroom. 

Before the Borough Council on Tuesday will be an ordinance that sets stricter requirements against disturbing steep slopes for developments, something that by all indications and records the council already approved last November.

At issue is whether the developer of a proposed 300-unit apartment complex on Munsonhurst Road can proceed using the previous, less-restrictive slope requirements or if the project will need to adhere to the new and soon-to-be-reaffirmed set. 

Records seem to indicate the steeper slope requirements were indeed recommended by the Planning Board and approved by the Borough Council, but those changes did not get codified, and the previous slope formula remained in the borough's online code book. 

Using the less restrictive slope requirements, JCM Investments presented plans for its apartment complex to the Planning Board in May, and in early June the board ruled the applications complete. No objections to the involved slopes were raised. Only later, at a public hearing in June, was it pointed out that the slopes formula used in the plans was no longer in effect. 

That began a slew of head-scratching, finger-pointing and legal action foreboding that led to the difficult-to-understand move to pass the stricter slope requirements again. 

Doing so can only further muddy waters that are already murky. 

Should the council approve the ordinance, it could be interpreted that the previous attempt wasn't done correctly, so the previous requirements were still in effect. 

On the other hand, if the council votes down the ordinance, does that negate the previous vote? And what effect would that have on the apartment project? 

The Herald continued:

The developer contends he acted in good faith, though it can be argued that ignorance of the law is no excuse. 

However, if the intent of the stricter requirements was to allow for greater discussion and review, that has already been accomplished. At a late November meeting, Planning Board member Jim Williams said, "We are reasonable people here. You want more than 10, 5 and 2 (the stricter set of slope requirements), come tell us why. We might say, ‘Yeah, that makes sense.' "

Without knowing it, they may have done just that when the plans submitted to the Planning Board and presumably reviewed by professional planners and engineers were deemed complete. No comments were made that too many slopes were disturbed. 

If the stricter slope requirements are ruled as applicable to the proposed development, a variance should be approved allowing the project to proceed to the next step. The borough code should be updated and let's move on. (A reprimand may be in order for the responsible party who failed to make the approved change to the code.)

That is, unless the failure to record the changes to the requirements will be used as an excuse to now stop the project.

Regardless of what happens on Tuesday, the matter will most likely need to be sorted out in court.

That’s the story, as reported in the NJ Herald.  

So we are curious as to why the NJ Herald is getting involved in this issue, without disclosing the involvement of its own attorney – who is also the new Sussex County Attorney – Mr. Kevin Kelly.  The Herald must be aware of Mr. Kelly’s involvement, as they have reported on it numerous times: 

Franklin accepts plans for 300 apartments - New Jersey Herald -

May 16, 2017 - Photo by Jake West/New Jersey Herald — Attorney Kevin Kelly speaks to ... to the proposal by Silk City LLC, a subsidiary of JCM Investments. 

Developer considers next step after Franklin denies apartment plan ...

Jul 7, 2017 - Newton Attorney Kevin Kelly said he is reviewing the borough's ... Daurio is a principal of JCM Investments which has developed and manages ... 

Apartment developer seeks Franklin meeting - New Jersey Herald -

Sep 22, 2017 - FRANKLIN -- The attorney for JCM Investments, the firm that wants to build ... attorney Kevin Kelly said there are issues for consideration by the ... 

Franklin Planning Board endorses new steep-slope rules - New ...

3 days ago - JCM Investments and its subsidiary, Silk City Rentals, which owns the ... at Thursday's hearing by attorneys Kevin Kelly and Autumn McCourt. 

Franklin Planning Board OKs zone recommendations for Munsonhurst ...

Nov 2, 2017 - Nick Daurio, a principal in JCM Investments, seated at center, listens along with his attorney, Kevin Kelly, seated behind him, and engineer Eric ... 

Franklin Planning Board rejects major housing complex - New Jersey ...

Jul 6, 2017 - As presented by Nick Daurio, a principal in JCM Investments, the ... After the vote, Kevin Kelly, a Newton attorney hired by JCM Investments, ... 

Franklin OKs rezoning for apartment complex property, but keeps an ...

Nov 30, 2017 - On Wednesday, attorney Kevin Kelly, who is representing the developer, JCM Investments and its subsidiary, Silk City Rentals, said he has not ... 

Franklin Council agrees to settlement, property to be rezoned to allow ...

Sep 27, 2017 - ... the developer's attorney Kevin Kelly argued in a letter last week, actually favored Silk City's proposed Milly's Court development on 71 acres.

This recent photograph, appearing in the NJ Herald, contains this caption:  Nick Daurio, a principal in JCM Investments, seated at center, listens along with his attorney, Kevin Kelly, seated behind him, and engineer Eric Snyder, seated in front of him, as the Franklin Planning Board begins its meeting on Wednesday.” 

So why is the NJ Herald formally putting its weight behind this project in an op-ed that reads like a threat of legal action against the town and taxpayers of Franklin?  Is it the newspaper talking… or is it the attorney talking through the newspaper?

Given his new role at the county – as county government’s top attorney and legal advisor – Mr. Kelly should avoid the appearance of such conflicts.  Given its role as the arbiter of elections and the host of political campaign debates and such, so should the NJ Herald.