By jeanette M. eng
Staff Writer
MARLBORO — The members of the Township Council have wasted no time in trying to make sure their "powers are not usurped," as Councilwoman Mary Singer said at a Jan. 9 meeting.
Singer was reacting to a Jan. 2 decision by members of the zoning board to grant a use variance to Marlboro developer Dan Werbler.
Werbler sought and received approval to construct Tennent Estates, a 35-home development on a piece of property zoned for commercial use on Tennent Road.
While the zoning board did not rezone the property from commercial to residential — only the council may do that — some people are questioning whether the granting of the use variance amounts to a de facto change in zoning.
Although any citizen may challenge the zoning board’s decision regarding Tennent Estates in state Superior Court, Singer wants to take action that would allow an appeal of zoning board approvals to be made to the council instead.
With that in mind, council members discussed the reinstatement of an ordinance that would establish the right of appeal to the council of certain land use approvals.
According to attorney Fred Rafetto, an associate of township attorney John O. Bennett III, the ordinance allowing appeals to the council was in place at one time and it provided an option to a Superior Court appeal, which is the only recourse presently available. In 1984, however, the ordinance was repealed in numerous municipalities, including Marl-boro, for time and cost reasons, he explained.
"If the town was to go forward with this type of ordinance, additional hearings would be required and the services of a court reporter would have to be engaged," Rafetto said. "However, you will be providing the public with additional options."
Singer, who brought the discussion before council, said, "I remember looking at the master plan very carefully in order to prevent overdevelopment. We have to take a stand [on the master plan] to prevent additional residents, additional taxes and additional schools."
Although council members were generally in agreement with such a system of checks and balances, as council Vice President James Mione referred to the ordinance, concerns were also raised.
Councilman Dr. Paul Kovalski Jr. questioned the lack of limitations of such an ordinance.
According to Rafetto, under such an ordinance, any individual, resident or not, could appeal any approval granted by the zoning board to the council.
"This could end up bringing quite a bit before the council," Kovalski said, speculating on the potential frivolous uses of the ordinance.
Singer, however, was not swayed.
"My main concern is not with the residents coming before us," the councilwoman said. "Our concern is in maintaining the integrity of our master plan and in preventing the usurping of our powers. I think we need to be the ultimate authority."
According to Rafetto, this type of ordinance would provide a grounds for appeal against any of six types of "D" variances approved by the zoning board. Once appealed, the council would refer to the transcripts of the zoning board hearings regarding the application in question and hold hearings, after which they would either reverse or affirm the original approval, or remand it back to the board.
Rafetto noted that the ordinance would only provide for appeals on approvals, not denials, of applications. He noted that if such an ordinance was adopted it would not be retroactive and would apply only to future decisions.
Council members decided to carry the item for further discussion. Rafetto was asked to look into other ordinances of a similar nature in order for the council to restrict it as much as possible to prevent abuse of the ordinance.
In attendance at the council meeting was zoning board Chairwoman Sherry Hoffer, who cited the council’s comments as being "ignorant on land use."
"Having never been to a zoning board meeting or learned about this (Tennent Estates) application, I think they should get off their asses before voicing an objection," Hoffer said. "I find it outrageous that they’re sitting there passing judgment."
Council members held an executive session during which they discussed possible litigation against the zoning board.
According to Singer, although there is no consensus to go forward with legal action at this time, the council is still working on the issue.
"Our attorney is in the process of getting more information on the (Tennent Estates) application, we are getting a copy of the resolution that approved the application and any other pertinent information will be gathered," Singer said.
The council will discuss potential litigation again at that point, she said.