Hearings on The Fountains
application to begin again
By kathy baratta
Staff Writer
HOWELL — Despite all of the hours that were spent at seven hearings held over a 10-month period, a majority of the Planning Board voted recently to void all previous hearings in The Fountains application and start hearing the plan all over.
That bombshell followed the first one dropped that evening by Planning Board attorney Ronald Cucchiaro, who announced that board member Michael Howell would not participate in any further hearings held on The Fountains project proposed by MGD Holdings.
The Fountains was a 300-unit apartment complex proposed for the Maxim-Southard Road area along Route 9 near Alexander Avenue when the current application was killed at the March 13 meeting.
Since its opening before the board, the application had faced organized neighborhood opposition from a group of citizens calling themselves Residents Against Irresponsible Development (RAID).
RAID retained attorney Edward Liston to formally represent them before the Planning Board in their opposition to the project.
At a meeting in January, Liston asked Howell to recuse himself from the hearings. He cited a purported conflict between Howell and a core RAID member, Sharon Carpenter-Migliaccio. Liston told the board that e-mails exchanged between Howell and Carpenter-Migliaccio had resulted in establishing a conflict between the two parties.
A police investigation begun at Carpenter-Migliaccio’s request concluded last month with no findings of harassment or wrongdoing on the part of either party.
At the January meeting, Cucchiaro told Liston and the board he needed to be able to review the entire matter before he could render a decision on what, if any, action should be taken by the board regarding the alleged conflict.
At that time, Cucchiaro told board members the issue for them was that if a conflict was acknowledged, all previous hearings held on The Fountains application would be voidable. He told board members that just the appearance of conflict — and not an actual conflict — was enough under the law to void all previous proceedings.
Howell was not present at the March 13 meeting when Cucchiaro read his letter to board members.
In his letter dated March 12, Howell refers to stories about the alleged conflict that were published by Greater Media Newspapers and states, "I do not believe that any personal differences that I have with Ms. Carpenter-Migliaccio have affected my objective review of The Fountains application, however, as a result of these charges, I do recognize that a perception of a conflict of interest may have been created in the mind of the public … I realize, however, that the legal standard is not actual conflict of interest but a perception that a conflict of interest could exist that is determinative and as such I am voluntarily recusing myself from further deliberations in the matter."
Following the reading of Howell’s letter, Cucchiaro told board members the "repercussions" of his decision meant the board now had to address the possibility of the appearance of a conflict. He said he had reviewed several e-mail exchanges between Howell and Carpenter-Migliaccio and concluded that the perception of a conflict could be determined to exist.
Cucchiaro advised the board that the courts have held that if a conflict exists, whole proceedings are voidable.
"The courts demand a taint-free atmosphere," he said, before telling the board, "My recommendation is that the board vote to void the hearings and start new."
Board member Mark Corzine asked that when the application comes before the board again, MGD Holdings submit plans reflecting the suggestions and direction the application had been taking, plans that were reflective of concerns already stated to the applicant.
After acknowledging the "public hearings out the window plus the cost of professionals," attorney John Marmora, representing MGD Holdings, agreed to extend the March 14 deadline for final approval. He also said the applicant would submit revised drawings of the application.
Before the vote, Deputy Mayor Peter Tobasco, who sits on the board, opined that it appeared that anyone could raise the specter of a conflict and derail an application.
Mayor Timothy J. Konopka, who also sits on the board, responded immediately and said, "That’s an excellent point. We’re held hostage."
Cucchiaro said it was for that reason that board members must conduct themselves at all times in a manner that is customary for a sitting juror. He reminded the board members that the panel is a quasi-judicial body and should maintain great discretion outside of the board’s hearings.
Cucchiaro said a major consideration would be for board members not to discuss the merits of any application with anyone unless the discussion takes place at a public hearing. He also told board members they should always immediately report to the board any threat they may receive of a lawsuit "or anything of that nature."
Before voting, board Chairwoman Pauline Smith, who has served more than eight years on the board and is a former member of Township Council, observed, "I have never seen anything like this, it baffles me."
Speaking with a reporter after the meeting, Smith said her remark was meant to reflect the fact that she had never seen a board member challenged in such a way.
Speaking highly of Howell’s ability and character, Smith said it was to the board members’ detriment that they would have to proceed without him, as he had been a very vocal board member whose technical knowledge contributed an expertise that would be missed during the new hearings on The Fountains.
In calling for the vote to void The Fountains application, Smith said, "We’re all in agreement. This has to end, but if we do start over this has to stop and no one else is challenged."
Liston said that with Howell’s recusal, at this time there would be no further allegations of conflict on the part of anyone he represented.
Smith then asked if any other members of the public objecting to the application who were not represented by Liston had any allegations of conflict. There was no response to her query from the audience and the vote was taken.
All board members, with the exception of Konopka, who said he was voting no because he was, "sticking to principle," then voted to void the previous hearings.
Board member William Trethewey, who reluctantly made the motion to void The Fountains hearings, said at the time of vote, "I agree with the mayor, but we have no real choice," and then proceeded to vote in favor of his motion.
Following the board’s vote, Cucchiaro posed a list of questions to board members in an effort to establish if there were any more ties or conflicts existing between the remaining board members who would hear a new application of The Fountains project, the applicant or any member of the public.
Following answers from board members he found satisfactory, Cucchiaro told the board, "It is my recommendation that the board, at this point, is taint-free."
Liston told the board he would "admonish his clients against further contact" with any board member.
April 29 was scheduled as the date when The Fountains application will be resurrected before the board.
To expedite things, a second, special meeting was scheduled for May 1.