November 25, 2009 THE VILLADOM TIMES I • Page 3 Franklin Lakes Cinnamon Lane property owner sues planning board by Frank J. McMahon The owner of a 3.4-acre site at the end of Cinnamon Lane in Franklin Lakes has filed a lawsuit against the borough, the planning board, and an adjoining property owner as a result of the planning board’s denials of a subdivision application for the site and a request to reopen the public hearing. William and Constance Smith, no relation to the borough councilman-elect, assert that the board’s denial of their application constituted “a palpable abuse of its discretion” and was wrongful because the plaintiffs met the burden of proof specified and required by the New Jersey Municipal Land Use Act for the intended use that they claim the board concedes is inherently beneficial. “The decision of the board was demonstrably arbitrary, capricious, and unreasonable,” Craig Hughes, the Smiths’ attorney stated in the civil complaint, “because the board presented no legally cognizable, fact-based reasoning supportive of its action and its unsupported conclusions were overwhelmingly against the great weight of the evidence. “Plainly, the board both abdicated its duty to apply the law to the facts and held the plaintiff to an impossible standard of proof regarding the application since it was clearly stipulated by the plaintiffs’ counsel that the additional soil moving permits would be applied and paid for.” The Smiths want to subdivide their property into two lots and construct one single family house on a proposed second lot, with their current residence adjacent to the proposed lot. According to the Smiths, two variances are required, both involving lot width, but they point out that the proposed lot would consist of 108,000 square feet, over 2.5 times the lot area required. They claim that, during the public hearing before the planning board, the main issue of concern appeared to be the fact that they had accumulated 5,320 yards of fill on the premises, which covered an area of approximately 60,000 square feet, in depths ranging from one to 3.8 feet with an average increase of 2.1 feet across the area. They maintain they had obtained two soil moving permits over the years, one for 1,600 yards, and the other for 1,400 yards, but during the course of the planning board proceedings, only the one 1,600 yard soil moving permit was presented into evidence. They said a second permit exists, and it has been provided to the court. According to the Smiths, it was only during the course of the planning board’s public hearing that they became aware of the excess fill issue. They said they have made, or are in the process of making, every effort to rectify matters, secure the proper permits, and satisfy all requirements of the borough and the New Jersey Department of Environmental Protection. In addition, they claim that while their premises may have fill in excess of what was allowed by the two permits previously obtained, that issue should not have been fatal to their application. They point out that, at a planning board meeting in November 2008, their counsel stipulated that, if the needed variances were granted, they would then apply for an additional soil moving permit. They also assert that any excess fill did not “create” the proposed second lot, because the proposed second lot contains enough uplands area for the construction of a residence, and the septic for that second lot has already been installed and approved by the borough. In addition, they say some of the excess fill will have to be to be removed in order to construct the proposed residence on the new lot. An adjoining property owner, Rose Festa, who resides on Orchard Lane, is named as a defendant in the case because she claims her property has a water problem as a (continued on page 8) OPEN Day Thanksgiving pm 10am-1 Creations By Fran Flowers & More... 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