January 29, 2014 THE VILLADOM TIMES I • Page 5 Franklin Lakes Planning board denies Shawnee Drive application by Frank J. McMahon The Franklin Lakes Planning Board has unanimously denied an application filed by the owner of a large dwell- ing on Shawnee Drive. The applicant requested a variance from the borough’s total lot coverage requirement. The board had approved property owner Bashar Sab- bagh’s application for the construction of a conforming dwelling and other improvements in January 2006. A large dwelling, currently assessed at almost $1.1 million, has been constructed on the site along with a large paver block driveway. The dispute between the board and Sabbagh centers on the definition of “total lot coverage” in the borough’s cur- rent ordinance versus the definition of “impervious cover- age.” in the borough’s previous ordinance. Sabbagh and his attorney, Joseph Ferriero, have argued before the board that the large driveway that was installed on Sabbagh’s property is pervious, meaning that water passes through it, because of the small spaces between the pavers and, therefore, the driveway should not be consid- ered part of the total lot coverage. The board, however, believes the pavers used by Sab- bagh are impervious, and the spaces between the blocks do not make the driveway “pervious.” The borough’s current ordinance concerning coverage was adopted in 2010 and it changed the term “impervious coverage” to “total lot coverage,” referring to that part of a site or lot that is covered by buildings, parking areas, drive- ways, pools, walkways, or paved ancillary surfaces, such as patios, tennis courts, and similar structures, or surfaces that have otherwise been compacted or covered with a per- manent layer of material.” Ferriero claims the change to the zoning ordinance made in 2010 is contrary to case law and that his client’s lot coverage should be calculated according to the language in the prior ordinance. The public hearing was carried many times and, after telling the board that Ferrierro wanted another postpone- ment to allow further testing on the driveway, John Spizziri, the board’s attorney, read the chronology of the application into the record. That chronology described the number of adjournments of the variance hearing Ferrierro requested and was granted, and the number of times Sabbagh’s plans were revised since his site plan was approved in 2006. Since the 2006 approval, Sabbagh revised his plans sev- eral times, and a revised plan was found to be fully con- forming with the zoning code in April 2010. An amended soil moving permit was issued at that time. In November 2011, a stop work order was issued to Sabbagh when it was found the improvements constructed on the site were not in conformance with the approved plan. The following July, Sabbagh submitted conforming cor- rective measures that included a further reduction of the size of the driveway and the removal of a pool from the plans. The stop work order was lifted and an amended soil moving permit was issued in July 2011. During an inspection of the site in May 2012, however, it was noticed that the driveway was not being constructed according to the most recent revised plan and Sabbagh was directed to restore the driveway according to the approved plan, or to submit a variance application to the planning board seeking approval to allow the driveway to remain. Work on the property was stopped again in July 2012 because Sabbagh had not addressed the need to restore the site to conform to the approved plan and he had not sub- mitted a variance application. Sabbagh submitted a new plan, but that plan was calculated to have a 33.85 percent lot coverage calculation, which required a variance from the planning board. The public hearing on the variance request started in December 2012 and Sabbagh rested his case at the Decem- ber 2013 meeting. Therefore, no further testimony could be presented at the Jan. 15 meeting. After the motion to deny the variance application was made by Mayor Frank Bivona at the Jan. 15 meeting, the rest of the meeting was spent discussing the board’s reasons for the denial that would be put into the board’s resolution. Because Ferriero has commented in the past that this matter would be appealed to Superior Court if the appli- cation were denied, the board discussed at length the tes- timony by Sabbagh’s expert witness, Nasr Sheta, a civil engineer with a Ph.D. Board member Joseph Pullaro expressed the concern that Sheta’s testimony was clear that he believes the paver (continued on page 27)