By Lea Kahn, Staff Writer
It will be up to a Mercer County Superior Court judge to determine whether a Zoning Board of Adjustment member can sit on the board or must recuse himself when the board reconsiders a controversial use variance application for a residential drug and detoxification center at 100 Federal City Road.
Attorney George Dougherty, who has been appointed special counsel to the zoning board, met with the board members in closed session Aug. 15 to consider how to proceed with a public hearing on the use variance application submitted by the Simone Investment Group LLC.
The Simone Investment Group LLC, together with Sunrise Detoxification Center, sought to open a 38-bed residential drug and detoxification center in one of the buildings at the office park. A use variance was needed because a residential drug and detoxification center in which patients are weaned off alcohol or drugs before being sent to another facility for counseling is not a permitted use in the Professional Office zone. An outpatient substance abuse clinic, however, is a permitted use.
The application was denied by the Zoning Board of Adjustment in June 2011, and the Simone Investment Group LLC sued in Mercer County state Superior Court. Judge Mary Jacobson ordered the zoning board to reconsider the application and that’s what led to the zoning board’s closed session last week to discuss how to proceed with it.
Among the procedural issues considered was a possible conflict of interest involving board member Edward Wiznitzer and whether he should sit on the board when it considers the application. Mr. Wiznitzer testified before the zoning board in favor of the application during the public hearings in 2011 prior to his appointment as a board member in 2012. He spoke as a citizen at those hearings.
When the zoning board emerged from its closed session meeting, Mr. Dougherty told the audience that the board member in question was “exercising his right” to sit on the zoning board. He added that in his opinion, “that kind of role is inconsistent” with becoming a member of a quasi-judicial board the zoning board that will decide on the application.
Mr. Dougherty recommended asking Judge Jacobson to rule on whether Mr. Wiznitzer could sit on the board when it hears the application again. The board agreed to hold off any further action until the issue of a potential conflict of interest could be resolved by Judge Jacobson.
Mr. Dougherty said he expected Judge Jacobson to decide the issue within a matter of weeks, not months. He said he would seek to have the matter “expedited.”
Federal City Road resident George Ford told the zoning board that Mr. Wiznitzer should recuse himself from hearing the application. He said Mr.Wiznitzer advocated for it, questioned witnesses and “couldn’t have advocated more for it” before joining the zoning board.
Board Chairman Stephen Brame replied that the zoning board is not in a position to remove a board member. That’s the reason the issue is headed for court, so a judge can rule whether the board member should recuse himself.
”That’s where we are,” Mr. Brame said.
After the meeting, Mr. Brame said that if Judge Jacobson rules that Mr. Wiznitzer should not sit on the board for this application, a replacement would have to be chosen. Mr. Dougherty will advise the board on how to proceed, if it becomes necessary to fill the vacant slot.

