Franklin Lakes May 18, 2011 THE VILLADOM TIMES I • Page 3 Conflict nullifies testimony on surgical center by Frank J. McMahon The testimony presented at a public hearing before the Franklin Lakes Planning Board has been nullified due to a conflict of interests. The case concerns a commercial building contractor’s application to allow construction of a 16,000 square foot medical office and ambulatory surgical center on two lots at the end of Tice Road. At an April public meeting, the board held an executive session to discuss potential litigation. When the board reconvened, its chairman, Frank Conte, announced that board members Joseph Medici and Joseph Palmieri were recusing themselves from the public hearing because they know Harold Cook. Cook is the attorney for Sabra Realty Associates, Inc., which owns the property adjacent to the proposed surgical center site, and is opposing the application. At that meeting, Cook strongly objected to the board’s action to go into executive session, claiming there was no pending litigation and that the closed session constituted a violation of the state’s open public meetings act. He also raised a question about the board’s jurisdiction, citing a previous Appellate Division opinion. The board adjourned that meeting to allow its attorney, John Spizziri, and Christopher Minks, the attorney for the applicant, time to review that case law. When the public hearing was reopened on May 4, Spizziri read a seven page letter supporting his opinion that the board’s action to go into executive session at the previous meeting did not violate the open public meetings act, although he acknowledged that the reason given for the executive session should have included that it was also based on attorney client privilege. Spizziri advised the board, however, that since the two board members who have now recused themselves participated in the hearing at which the original testimony on the application was provided, the record was tainted and the applicant would have to start from the beginning, although it was not necessary to readvertise the meeting and provide notice of the hearing other than to notify those entitled to notice by regular mail. Spizziri also cited case law which he said precludes Cook from objecting any further to his interpretation of the borough’s zoning ordinance that this use is permitted in this zone, and no further discussion or objection by Cook should be permitted by the board. Medici tried to change his recusal, telling the board he recused himself only after Spizziri told him in the executive session that it was his opinion that if Medici did not recuse himself, the board could take a vote and force him to do so, and he did not want to be divisive. “That was the only reason I recused myself,” Medici told Spizziri. “I feel that was an incorrect opinion and, based on that, I am not recusing myself. The reasons you gave for my recusal are not sound and, if they are sound, then we both have the same issue.” Medici did not explain what that issue is. Palmieri asked Conte if the board could get a second opinion about the conflict of interests from the borough attorney, but Spizziri advised both board members that they cannot change their decisions to recuse themselves. Testimony is scheduled to be presented to the board on the application at the May 18 board meeting, at which time James Heuer, the managing member of Tice Road Properties, will testify anew about his opinion that a surgical center would be appropriate for this site according to his own research that was aided by experts in that field and his own architect. He will also explain how he plans to consolidate two lots into one and build a two story commercial building on the resulting lot with associated parking for a medical office/ambulatory surgical center that would have access from Tice Road and from Franklin Avenue. In 2010, the borough changed the zoning of the property from I-2 industrial to RB retail business. 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