Council tries again to rezone properties

BY TALI ISRAELI
Staff Writer

MARLBORO - Several residents spoke out on May 18 against an ordi-nance that would upzone certain properties in Marlboro from 2-acre to 5-acre residential zoning.

The ordinance was introduced on May 4 and would, if adopted by the Township Council, rezone certain parcels of land in town from R-80 zone (2-acre residential development) to a Land Conservation (LC) district (5-acre residential development).

The ordinance includes a grandfather clause which states that any legal existing single-family home would be grandfathered in provided that no further subdivision would take place. The grandfathering provision also extends to the properties in the event they are sold.

May 18 was the public's second chance to comment on the ordinance, which was originally adopted in Septem-ber as part of a package of nine laws that implemented Marlboro's revised master plan. The master plan is the document that directs the development of a municipality.

On May 2 the law was overturned by a state Superior Court judge in a ruling which stated that the law had been adopted improperly.

Following the adoption of the rezoning ordinance by the council last fall, several residents filed lawsuits against the council, Mayor Robert Kleinberg, the municipality and Councilman Joseph Pernice, who was the council president in 2005. The plaintiffs claimed the rezoning unfairly devalued their property.

The residents who filed the lawsuits were Russell Reeves, who owns 11 acres on Beacon Hill Road; Sonny Schwartz, who owns about 70 acres of farmland on Beacon Hill and Reids Hill roads; the owners of Stattel Farm, a 78-acre parcel at the intersection of Route 79 and Route 520; Marlboro Holdings, which owns the 52-acre Marlboro Airport property on Route 79; Angelo D'Arpa, Carlo D'Arpa and Gioacchino D'Arpa, who own approximately 72 acres of farmland on Pleasant Valley Road; and James and Patrick Smith, who own about 32 acres of farmland on Harbor Road.

The owners of Stattel Farm dropped their lawsuit after reaching an agreement with Marlboro officials which calls for their property to be used for an affordable housing development and a commercial project.

The lawsuits also made a claim against Pernice, stating that although he recused himself from voting on the ordinance because of a conflict he had with one of the lots in question, the council president failed to step down from the dais during the proceedings.

That was the basis for Judge Alexander D. Lehrer to rule on May 2 that the rezoning ordinance had been improperly adopted.

Township Attorney Andrew Bayer said the municipality strongly disagrees with the court's decision and said officials are pursuing legal remedies to correct the ruling.

During the May 18 public hearing on the reintroduced ordinance, resident Steve Glickman questioned what kind of legal remedies the township was pursuing.

Bayer said the council was still considering options which include an appeal or a motion for reconsideration.

Glickman, who is an attorney, questioned why the council would seek these legal remedies if the ordinance could be adopted as long as Pernice does not participate in the current proceedings.

Glickman noted that since an appeal is not a prerequisite to the adoption of the law, there is no reason to spend additional money on appealing the court's decision.

Bayer said he would provide the mayor and council with legal advice on how they may want to proceed with this matter.

Schwartz reiterated the concerns he expressed last year and in his lawsuit; he added that he believes he will prevail in court again.

"You're spending a ton of money on legal fees and you're going to lose again ... You're going to have a hard time beating me in court. but I'll beat you, that I can tell you is a promise," Schwartz told the council.

According to Schwartz, an R-80 zone is not where residential overdevelopment has occurred in Marlboro.

"One man has decided that it's OK to attempt to destroy what I worked for my whole life. It doesn't seem right," Schwartz said. "I can only promise you that I will be a fish bone in your throat and that I will endeavor to sue every one of you personally for failure to live up to your fiduciary responsibility and burden the taxpayers of Marlboro with enormous legal bills."

One resident questioned why the township attorney did not advise Pernice to step down from the dais during the proceedings last year.

Bayer said he gave the councilman private advice and added that the law which was cited in his legal brief to the court supported the actions Pernice took.

When Bayer was asked by the resident if he believes that what Pernice did was right, he said it is not his job to make moral decisions. Bayer added that Pernice's actions were legal and were based on controlling precedent from the New Jersey appellate division.

When the resident questioned whether Bayer's firm was willing to pay the legal fees that had been incurred because of his advice, Bayer said lawyers win and lose cases every day.

The council was unable to vote on the ordinance on May 18 because the Planning Board has not reviewed the law. The ordinance is scheduled for a possible vote for adoption at the council's June 1 meeting.