Mahwah February 10, 2010 THE VILLADOM TIMES IV • Page 3 Board doubts jurisdiction in contested application by Frank J. McMahon Due to a notification question, the Mahwah Board of Adjustment doubts it has the jurisdiction to continue its public hearing on a variance application by Philip Filippone. The applicant plans to construct a single family dwelling on a landlocked piece of property he owns in the wooded area west of the Ramapo River and Ramapo Valley Road near the border with the Borough of Oakland. The jurisdiction issue arose when Robert Zisgen, the attorney for James Venusti, an adjacent property owner who is contesting the application, notified the board that recent case law requires that all property owners within 200 feet of all properties impacted by the proposed development must be notified about the public hearing. Zisgen said Filippone had only notified those property owners within 200 feet of his own property. Ben Cascio, the attorney for the board of adjustment, said he agrees with Zisgen on the lack of the board’s jurisdiction, but he believes the board should allow Filippone’s attorney to present an argument on the matter. Filippone has not been represented by an attorney during the public hearing, and Cascio urged him to retain a lawyer to represent him in the complicated legal matter. Filippone told the board that the law firm he had consulted with said he did not need an attorney at this time. Zoning Board Chairman George Cimis told Filippone that there are now two attorneys representing the opposition in this matter, and expressed his opinion that it would be appropriate for the applicant to retain an attorney. Filippone said that this legal issue should be argued in court and not in front of the board of adjustment. He maintained that he is entitled to rely on the list of property owners who must be notified that is provided by the township’s tax assessor’s office. Cascio agreed that an applicant has the right to rely on a certified list of property owners from the tax assessor’s office, but he pointed out to Fillipone that an applicant has to provide the lot and block numbers of the properties that will be affected by the application and, according to case law, other properties that may be affected by the application may require additional notification of the public hearing. “The Venusti property is impacted,” Cascio said, “and so you should want an attorney to address that legal issue.” He told Filippone that he is not required to have an attorney, but that it would be foolish not to on this question of law because, without a legal argument on the issue, the board would be forced to dismiss his application without prejudice. That action would mean the application would be denied, but the property owner could bring the matter back to the board in the future. “The only credible evidence (on the issue) has been presented by your opposition,” Cascio told Filippone. Cimis joined Cascio in urging Filippone to retain an attorney, saying, “It would be illogical to ignore the advice of an attorney.” Filippone debated the need to retain an attorney, but ultimately agreed to do so. Cimis directed him to have this attorney submit his or her argument on Filippone’s behalf 10 days prior to the next hearing on the matter, which was scheduled for March 17. If the board ultimately finds it does not have jurisdiction in this matter because Filippone did not notify all the property owners, the application would have to be dismissed. Filippone would then have to resubmit the application and notify all the property owners within 200 feet of his property and any property that would be impacted by the application. Filippone wants the board’s approval to build a single family dwelling on his property, which does not have any frontage on an improved street. Plans call for a 12-foot wide driveway partially within a 25-foot wide access easement that would extend over the Venusti property to Midvale Mountain Road. Filippone won the right to that easement in Superior Court in 2007 when Judge Robert P. Contillo found he was entitled to the easement across the Venusti property. However, that easement would expire in four years if all approvals necessary for the construction of the dwelling are not received within that time, or sooner if the application for the necessary approvals is denied. Contillo ordered that, once all the approvals are received and all appeals resolved, the easement would become permanent. Offer includes exam, dental cleaning and complete digital x-rays. Expires 3/21/2010. Offer cannot be combined Call to schedule your New Patient Exam and receive a $1.00 Take Home Whitening Kit. Expires 3/21/2010. Offer cannot be combined. www.mkdmd.com