The Villadom Times Weekly Newspaper Online-Jul 21, 2010 Issue

Franklin Lakes July 21, 2010 THE VILLADOM TIMES I • Page 9 Judge upholds Cinnamon Lane subdivision denial by Frank J. McMahon Superior Court Judge Joseph S. Conte has sustained the Franklin Lakes Planning Board’s October 2009 decision to deny an application by William and Constance Smith, no relation to the current council member, to subdivide a 3.4-acre property at the end of Cinnamon Lane into two lots. During the one-day bench trial, Planning Board Attorney John A. Spizziri represented the borough while attorney Craig Hughes represented the Smiths and attorney Mark Madaio represented Rosa Festa, a neighbor who opposed the subdivision plan. The property is located in the A-40 residential zone and an application for the subdivision came before the planning board in December 2004. The board held eight public meetings to hear testimony on the application. During those public hearings, neighbors 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. The Smiths argued at the time that they had a permit to build a septic system and perform soil movement on the property. However, the neighbors claimed the Smiths had created a false building lot with the fill that was brought onto the site by hundreds of trucks. Judge Conte found that the board reasonably determined that the Smiths did not present sufficient proofs to satisfy the granting of the requested variances and did not present adequate reason to overturn the denial of the planning board’s decision to deny the subdivision. He stated in his 16-page decision that the board did not act arbitrarily, capriciously, or unreasonably in denying the Smiths’ variance application and that the Smiths did not establish, under the proper standards, that their variances should have been granted by the planning board. According to Judge Conte, the planning board based its denial in part on the excess soil, or fill, on the property which allegedly did not comply with the borough code as to quality and was never approved by the borough to be placed on the property. He pointed out that the planning board also found that the Smith property did not suffer from any issues that mandated the granting of a variance, and the hardship the Smiths claimed was created by them in their attempt to subdivide the property, which the planning board contends cannot be subdivided due to environmental constraints. Conte explained that the planning board had claimed that 5,320 cubic yards of fill were placed on the Smith property to create a buildable lot and conceal the deficiencies of the property. But he pointed out that the Smiths argued that they met their burden of proof by presenting substantial, credible evidence and uncontroverted expert testimony during the planning board’s public hearings. According to Conte, the Smiths claimed they received a soil moving permit in 1988 to move 1,506 cubic yards of soil to construct a septic system and two additional soil moving permits when their residence was constructed and their subdivision plan mitigated any excess fill issues. The judge also said the Smiths had argued that they put forth expert testimony indicating the unique characteristics of the property and that the board presented no expert testimony to oppose their contention that the property suffered an undue hardship that prevented them from meeting the setback requirements. Conte explained, however, that the planning board maintained that the Smiths did not prove that the variance requested could be granted without substantial detriment to the public good and that it would not substantially impair the intent and purpose of the borough’s zoning plan and ordinance. Nevertheless, the Smiths argued that the planning board made no findings of fact to support those conclusions and that no expert testimony was offered to support them. Conte further pointed out that a neighbor also argued that the Smiths did not demonstrate that a hardship variance was warranted and that they failed to demonstrate that they have satisfied the criteria necessary for the granting of a variance or answer the board’s questions about unaccounted fill on their property. In explaining his ruling, Conte stated that a reviewing court accords great deference to the expertise and discretion of a municipal board and its discretion will not be reversed unless a plaintiff can demonstrate that a board’s decision was arbitrary, capricious, and unreasonable. He found that, based on the submissions of the parties involved and the relevant statutes and case law, that the variances requested were not warranted and, because the proposed subdivision was planned in such a way as to make the property non-conforming, he found that the Smiths’ claim of hardship was self-created and the board acted reasonably in not granting a variance based on hardship. Conte also found that the planning board’s determination that the Smiths did not present sufficient proof that they should be granted dimensional variances was reasonable. He also rejected the Smiths’ claim that some of the fill on the property could be accounted for by old soil moving permits, stating that thousands of cubic yards of soil were on the property without a permit and without explanation. Craft program offered The Franklin Lakes Public Library is offering a sand craft to children in grades two through five on Tuesday, Aug 10 at 2 p.m. Participants will use colored art sand to make a keepsake or gift. Registration is required. Franklin Lakes residents may register beginning July 29; out-of-town residents may register on Aug. 6. Register by calling (201) 891-2224 or by visiting the library during regular hours. 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