Page 6 THE VILLADOM TIMES I • June 24, 2009 Franklin Lakes Cinnamon Lane subdivision application denied by Frank J. McMahon The Franklin Lakes Planning Board has denied an application to subdivide a 3.4 acre site at the end of Cinnamon Lane into two lots. The board claims the property is not appropriate for the construction of a dwelling. The application by property owner William Smith Jr., who is not related to the recent candidate for borough council, has been before the planning board since December 2004. The board has heard testimony about the application over the course of eight public meetings since then. During that time, however, two adjacent neighbors have complained that a large amount of fill had been brought to the site over the years, eliminating much of the wetlands on the property and elevating it so that wetland areas were forced onto their properties. At the board’s last public meeting on the application, one of those neighbors, Rosa Festa, who has lived on Orchard Lane adjacent to this site since 1985, testified that she has seen trucks bringing in soil and dumping it on Smith’s property since the 1990s. She showed photographs of the site as it was in May 1990, and as it appears today. She claimed she had complained many times to the borough, but was told Smith was just cutting down trees on his own property. She maintained, however, the fill that was brought onto the site moved the wetlands into her backyard. “Before, the other property was lower than mine, and now it is higher,” she testified, claiming that before over 5,000 cubic yards of fill were brought onto the site, she did not have a problem with water draining onto her property. Asked by her attorney, Mark Madaio, if she had an opinion how that fill got onto the site, she said it was brought in by trucks that were coming to the site all the time. She testified that, when she called the borough about the fill being brought to the site, and the police responded to her complaint, she was told that “it is his property and he can do anything he wants to it.” Smith’s attorney, Bruce Whitaker, asked Testa if she had photographs of the property before 1990, when she said she began to see the dumping of the fill, but she said she did not. She was also asked if she was aware of the fact that Smith had a permit to build a septic system and perform soil movement on his property, and she said she was not. Madaio told the board, however, that Smith wants to build a house on what he described as a “false building lot” that was created by over 5,000 cubic yards of fill that was brought in by hundreds of trucks. “When Festa complained,” he said, “either because her English is not good, or because Smith was building a septic system, it went completely undetected.” He emphasized that Smith knows how the fill came to the site, but he won’t testify about it under oath. Whitaker asserted that there was no testimony during the public hearing contradicting the testimony of Smith’s engineer and planner, or the board’s engineer, and a number of reports including an environmental impact study. He emphasized that the original lot meets all the requirements of the borough’s code, and the new lot, while requiring two variances for dimensions that would not be discernible, would be two and a half times the size required by the borough’s zoning ordinance. He maintained that his client’s application meets all the zoning requirements for the variances needed and he asked the board to approve the subdivision. The board’s deliberation centered on the amount of fill on the site, when it was brought there, and whether Smith could be asked, or compelled, to testify about the origin of the fill. After consulting with his client, Whitaker advised the board that Smith would neither testify before the board voluntarily nor respond to a subpoena from the board seeking his testimony. He said he has presented his client’s case and wanted a vote on it that evening. After conferring with Planning Board Attorney John Spizziri, board member Joseph Pullaro moved to approve the subdivision with the condition that the fill be removed. That motion failed when the board voted 3-2 against it with one abstention, which is counted as a negative vote. Board member Julius Lauber explained his negative vote on the motion, saying if it were appealed, a Superior Court judge would likely rule that the condition was “silly” and not enforce it. He then moved to deny the application and the board approved that motion 5-0. Courts (continued from page 5) to see what restrictions could be placed on the courts’ use to minimize problems with the neighbors. Plans call for building two outdoor courts, including fencing and safety lighting and some parking. The borough has received a $92,000 grant from the Bergen County Open Space Trust Fund, to be matched with an equal amount from the borough’s own Open Space Trust Fund. The borough is also considering applying for another grant to erect a cover over one of the courts at a future date. The outdoor courts can be used by the town’s basketball association for games and practices, by the summer and other recreation programs and for pick-up games of adults and teenagers.