Franklin Lakes June 12, 2013 THE VILLADOM TIMES I • Page 5 Superior Court seeks resolution to traffic dispute by Frank J. McMahon Superior Court Judge Alexander Carver III has asked both sides in the legal dispute between the Franklin Lakes Borough Council and the owner of the Franklin Square Shopping Center on Franklin Avenue to submit their legal arguments to him in writing and to try and resolve their differences before conducting a trial on June 14. Robert Decker, who owns the shopping center, filed a lawsuit in Superior Court against the borough in May 2011 seeking to nullify an ordinance that was adopted by the council in March 2011 that prohibits vehicles exiting his shopping center from making left turns onto Franklin Avenue, or to compensate him for his loss of property value. The ordinance at the heart of the dispute added two new locations to the borough code where left turns would be prohibited. One is from the intersection of McCoy Road onto Colonial Road at the southwestern end of McCoy Road where a fatal accident occurred on Dec. 24, 2011 and the other is at Decker’s shopping center. The part of the ordinance related to the Decker property was intended to prevent motorists from making left turns past traffic heading east toward Pulis Avenue during the times children and/or their parents are trying to cross Franklin Avenue on their way to or from the Franklin Avenue Middle School. According to the ordinance, the no-left-turn prohibition at the McCoy/Colonial Road intersection was to be in force at all times; the turn restriction at the shopping center would apply between 7 a.m. and 8:30 a.m. and between 2 p.m. and 3:30 p.m. on weekdays. In his letter brief to the court, Franklin Lakes Borough Attorney William Smith argues that there have been an unusual number of accidents in front of Decker’s property involving vehicles making left turns as they leave the site, and the borough has the right to establish rules controlling the path vehicles are permitted to travel on its roadways in the interest of the safety and welfare of the traveling public. “The Borough of Franklin Lakes and the County of Bergen have reasonably determined that allowing left hand turns across two lanes of traffic onto a third lane on an area of Franklin Avenue with poor sight lines poses a risk to the public,” Smith wrote. “The Borough of Franklin Lakes has the right and obligation to eliminate the danger.” Attorney Matthew S. Rogers, who represents Decker, disagrees. In his letter brief, Rogers argues that his client’s site plan was approved by the planning board in 1993 without the left turn prohibition, and it should not have been imposed by ordinance without a public hearing before the planning board. Rogers further claims that there was nothing put on the record when his client’s site plan was approved by the planning board to support the borough’s claim that there have been an unusual amount of accidents in front of Decker’s property, and there is no evidence now to support the borough’s assertions. He also argues that the borough’s claim that the sight lines are often limited at that location creating a dangerous condition was not alleged at the time the ordinance was adopted, and the borough has not explained how those sight lines are temporarily limited. Smith argues, however, that Decker’s site plan originally prohibited left turns by vehicles exiting the shopping center, but that prohibition was removed after various improvements were made by the county to the adjacent intersection of Pulis Avenue and Franklin Avenue. He claims, however, that the traffic in front of Decker’s property has increased substantially since then. According to Rogers, when the borough council adopted the ordinance, the primary goal was to address the safety issue at the McCoy/Colonial Road intersection and the council members did not want to delay adoption of the ordinance in order to address Decker’s concerns. He claims the borough attorney at the time even advised the council that the ordinance could be adopted and amended later to address its impact on the Decker property. “It is disingenuous,” Rogers states in his letter brief, “to attempt to justify the restrictions on a public safety basis now when the record of the ordinance’s adoption two years ago is devoid of any such issues.” Rogers also alleges that the adoption of the ordinance represents an unconstitutional “taking” of his client’s property without just compensation due to the “severe economic impact” the ordinance has had on the operation of his property as a leased commercial site. Smith contends, however, that prohibiting vehicles from making left turns when leaving the Decker property is not a “taking” of Decker’s property that requires compensation because he claims a “taking” is when a regulation so restricts the use that the land cannot practically be used for any reasonable purpose.