The Zoning Board formally denied a . (Leibman, appointed New Milford's Borough Attorney, has removed himself from representing Ashley in this matter.)
With the exception of Peter Rebsch, all of the Board members voted to consider the revisions an amended application, thereby allowing the hearings to proceed as scheduled.
In presenting his motion to the Board for consideration during the December meeting, Leibman cited the case of Lake Shore Estates v. Denville Township, and said, "This is a substantially different application than what was originally filed."
The Board based their decision on the information provided by the applicant's attorney, Antimo "Andy" DelVecchio, in a ten-page memo submitted to the Board on Dec. 28, and the legal opinion rendered by Sproviero. DelVecchio's memo concluded that because no qualitative changes had been made to the site plan, the revisions constituted an amended application and not a new application.
In rendering his legal opinion, Sproviero also concluded that the revisions to the site plan do not constitute a new application, but an amended application.
Sproviero said that of the four judicial cases regarding "new vs. amended" site plan applications, only one case was determined to be a new application--the Lake Shore case originally cited by Leibman when making his motion.
Sproviero explained that the courts determined that the Lake Shore revisions constituted a new application because the applicant added an additional 28 acres to the development resulting in expanded density and the need for new residents affected by the additional acreage to be noticed.
"Additional density triggers a new application," Sproviero said.
Citing that the revisions that Hekemian has made reduces the number of housing units, thereby reducing the density, Sproviero said that the size of the property and the scope of the development has not changed.
"The applicant has not added new property that would affect new residents; there are no new variances that would require new notices," Sproviero said, adding that the commercial component remains unchanged.
Although the revisions will require additional testimony from Hekemian's architect, engineer and traffic engineer, the hearing regarding the proposed development will continue as scheduled.