Page 10 THE VILLADOM TIMES I • November 19, 2014 Franklin Lakes Court dismisses affordable housing lawsuit by Frank J. McMahon Superior Court Judge William C. Meehan has affirmed the Franklin Lakes Zoning Board of Adjustment’s October 2013 denial of a use variance application made by a devel- oper who wanted to build affordable housing on a 3.2-acre residential lot at 724 Franklin Avenue. Joseph Commorata, a principal of ABJC Investments, LLC, planned to build two buildings on the residential prop- erty, which is adjacent to Shirley Avenue. The plan called for 24 multi-family dwelling units, including five low- and moderate-income housing units. Commorata asked the zoning board to grant him a use variance because multi- family housing is not permitted in the A-22.5 residential zone where the site is located. Meehan dismissed the matter “with prejudice,” which means his decision is based on the merits of the case and future action on the matter is barred. The judge pointed out that Commorata had instituted this lawsuit on two grounds. The first was that by providing 20 percent of the total units proposed for the site for afford- able housing the application would be inherently beneficial, and therefore, should be granted because the denial of the application would be arbitrary, capricious, and unreason- able. According to Meehan, the second reason Commorata claimed the zoning board decision was wrongful was that Franklin Lakes had agreed to use zoning variances as one way to assist the borough to meeting all of its obligations under the Council on Affordable Housing regulations and the borough should, he claimed, be barred from denying the variance. “The real issue in this matter,” Meehan stated in his decision, “is whether a 20 percent set-aside for low- and moderate-income housing is of such an inherently benefi- Officials drop deer fence ordinance The Franklin Lakes Borough Council has decided not to pursue an ordinance that would permit residents to install deer fences. A deer fence is made of black polypropylene material that is strung between black metal pipes and is almost invisible from a short distance because it blends in with the landscape. It is higher than a usual fence, normally seven to eight feet tall, to prevent deer from jumping over it. The issue was raised at the August council meeting by a resident who told the governing body about the destruction of the woods behind that resident’s house which is caused by deer as they forage for food. Borough Administrator Gregory Hart advised the coun- cil that not many residents have asked for permission to install deer fences. The borough’s current ordinance allows five foot fences in a rear yard, but deer can jump a five-foot fence and they pose a common problem as they search for food and often eat the leaves off many trees and bushes on private proper- ties. For the past three work sessions, the council has been discussing the potential introduction of an ordinance to allow deer fences and related ordinances were obtained from other towns to review how those municipalities have addressed the issue. One of those towns is the Borough of Alpine, which permits deer fencing, but not in the front yard, and not in the setback area of a property line. Franklin Lakes Mayor Frank Bivona explained that, in Franklin Lakes, that would mean not within 25 feet of a property line. During the discussion, Bivona told the council that he (continued on page 23) cial use that it alone forms the grounds for a variance being approved by the zoning board. He explained that a use is inherently beneficial when it is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Meehan referred to a previous Appellate Division case against the Branchburg Zoning Board in which that court held that a 20 percent set-aside did not make the application inherently beneficial and he stated that the wording in that case determines this case. Meehan also pointed out that a “D” use variance is granted only if the applicant satisfies both the positive and negative criteria for granting the variance. He explained that the basic proof of the positive criteria for this appli- cation was solely the 20 percent set-aside for affordable housing and that is in the nature of a builder’s remedy. He explained, however, that the state’s Fair Housing Act pro- vides that a borough that is compliant with the COAH pro- cess is insulated from builder’s remedy lawsuits and, since Franklin Lakes is in compliance with COAH, a builder’s remedy relief is not available to Commorata. In addition, Meehan found that Commorata did not meet the positive criteria requirement because the zoning board found that the proposed use was not particularly suited to the location for which the variance was sought since the site of the proposed use contains a large wetlands area. In addi- tion, he pointed out that the borough planner determined that the proposed use would intrude into the wetland buffer and would further require New Jersey Department of Envi- ronmental Protection permits. “Even if the applicant met the positive criteria require- ment,” Meehan stated, “the applicant still must meet the negative criteria; that is, prove that they would not create a substantial detriment to the public good and without sub- stantially impairing the intent and purpose of the zone plan and zoning ordinance. (continued on page 23)