Page 6 THE VILLADOM TIMES I • June 1, 2011 Franklin Lakes Surgical center hearing stymied by two lawsuits by Frank J. McMahon Two separate lawsuits have prevented the Franklin Lakes Planning Board from restarting the public hearing on a commercial building contractor’s application for permission to build a medical office and ambulatory surgical center. The 16,000 square foot building is being proposed for two lots at the end of Tice Road. The planning board was set to begin rehearing testimony on the application at its last public meeting when the board was informed that Harold Cook, the attorney for Sabra Realty Associates, an adjacent property owner and objector to the application, was filing a lawsuit against the board, Board Chairman Frank Conte, Board Attorney John Spizziri, Caitlin Bauer, the recording secretary for the planning board, and the applicant, Tice Road Properties. The board also learned that two of its members, Joseph Medici and Joseph Palmieri, are suing the board and its attorney in a dispute over whether they have to recuse themselves from the hearing to avoid a conflict of interests because they know Cook. As a result, the matter of the conflict of interests of all planning board members in this application was referred to the borough council, which is expected to hold a special meeting to discuss this dispute unless the court issues a stay of all action in this matter. Cook filed an eight count complaint in Superior Court on May 19. The complaint claims that Spizziri erred and was negligent in advising the board that a surgical center is a permitted use in the borough’s RB business zone; that the board was negligent in interpreting that the surgical center is a permitted use in that zone; that Spizziri has a conflict of interests in this matter because his wife owns a three tenant office building in Wyckoff in which the objector’s professional planner, Michael Kauker, is a tenant and Spizziri did not disclose that potential conflict of interest to the board; and that there was a willful violation of the state’s open public meetings act by Conte and the board when Conte announced at an earlier meeting that the board was going into executive session to discuss litigation. Cook claims the board discussed matters relating to the application at that executive session. In addition, Cook asserts that the planning board’s recording secretary produced minutes of the executive session that did not include certain statements made at the executive session, including one by Medici that the executive session was improper and illegal. He also complains that she failed to include the opinion of Spizziri that, due to a conflict of interests, Medici and Palmieri could be voted off the board for this application by the remaining board members if they did not recuse themselves from the public hearing, and they would be liable for a civil lawsuit as a result of the conflict of interests. Cook further complains that the minutes of a subsequent meeting do not reflect statements made by Conte at that meeting and that he was not permitted to respond to Spizziri’s seven page opinion on the matter which was read in its entirety at that meeting. According to Cook, the applicant was named as a defendant in the lawsuit to ensure his compliance with all orders issued by the Superior Court. Cook also asked the court to stay all action in this matter; that any action by the planning board be rescinded; that Spizziri, Conte, and Bauer be removed from participation in this application; and that the matter be transferred to the zoning board of adjustment for a determination of jurisdiction. The dispute began as soon as the public hearing of the application by Tice Road Properties opened in March. Cook objected to the planning board’s jurisdiction in the matter, and Spizziri advised the board that, in his opinion, the surgical center use was a permitted use in this zone and that the planning board had the jurisdiction to hear the application. The dispute became more vocal when Conte announced at its April 6 meeting that the board was going into executive session. Cook asked the purpose of the executive session, and was told it was to discuss litigation. When the board reconvened from its executive session and Conte announced that two members of the board were recusing themselves from the public hearing due to a conflict of interests, Cook verbally denounced Conte and Spizziri, claiming he was lied to about the reason the board went into executive session and that the board violated the state’s open public meeting act by doing so. On May 4, Spizziri read a lengthy statement exonerating the board’s decision and action to go into executive session. Cook again attempted to address the board, but was told he could not. At that meeting, Medici and Palmieri, who is Medici’s son-in-law, challenged Spizziri on his opinion that they should recuse themselves and they attempted to undo the recusal but Spizziri told them they could not do so. Spizziri advised the board, however, that because Medici and Palmieri had participated in the public hearing before they recused themselves, the record was tainted and the public hearing would have to be repeated on the record from the beginning.