Split Zoning Board Again Denies Mountain Way Townhouse Proposal

The revived 700 Mountain Way housing development fell to defeat for the second time at a special Parsippany Zoning Board of Adjustment meeting at Town Hall Wednesday night.

Final arguments were the subject of the special meeting, which addressed building a controversial 20-unit townhouse development in Parsippany's only rural residential zone.

Attorney Louis Rago, representing Preserve Mountain Way, a group of three citizens opposing the Edward Mosberg development, sent a letter to board members March 14 containing the vast majority of his summation and a possible legal issue over the fact that the zoning board never memorialized its initial denial of the project last year.

Board Attorney George Johnson said it is clearly within the board's discretion to reopen the townhouse application.

"There is no harm to adopting the resolution," he said."If the board decides now to grant the application, the board will have to adopt a resolution memorializing the denial."

Rago "respectfully" disagreed.

"The public needs to see why you denied it," he said. "I'm not going to dwell on this. My comments are in the letter."

The lawyer went on to present a summary of his clients' concerns regarding 700 Mountain Way, which the board started considering more than four years ago.

"Unlike fine wine this application does not get better with age," Rago said. "The overriding issue in this case is where this is located. We're not talking about Mr. Kramer's driveway or a townhouse zone where the applicant needs a little more than the zoning allows. What's here is ... the rural residential zone in Parsippany, the only RR zone in this township. One single family home on two acres."

Rago argued that the zone should be protected and that any changes should follow the master plan and be "by the policy of the governing body through planning, not piecemeal through zoning."

"The master plan specifically discourages multi-family development in the RR zone," he said. "That land was sensitive in 2004... if something isn't broke you don't fix it.

"This is a pure two-acre zone and the township policy has been to leave it alone."

Board President Robert Iracane said he was insulted by Rago's statement.

"The way you make it sound, we just use the master plan and don't need a board of adjustment," he said.

Rago tried to clarify and said the ZBA's work for small residential and commercial projects is important, but that a project of this size is too big for a zoning board.

"It can be heard by a board of adjustment, but not decided," he said. "It's more a policy decision and boards don't make that. Zoning boards are critical. What you do is play Solomon. You do a good job. I meant no disrespect.

"I just believe there are cases, and I think it's one of them, where it's a heavy lift legally."

Next up was the developer's attorney Joseph O'Neill, "the better looking half of [law firm] Garofalo-O'Neill,"  Iracane quipped.

"This is not some country road," the lawyer said. "It's a busy thoroughfare."

Then he addressed legal issues regarding the board's ability to reopen its consideration of 700 Mountain Way by citing a number of cases supporting the ZBA's reconsideration.

He pointed to the many land uses in the area, including rural residential, multi-family and open space.

According to O'Neill, steep slopes on the property would make it nearly impossible to erect the type of large single-family home that is customary in the area.

"Large development of estate homes is not going to happen there," he said. "There are no setback or buffering issues, steep slopes are being complied with, and we're incorporating a green belt surrounding it. It's very much a net positive. This is a much better application and I hope the board will see it that way."

Resident Diane Parsani, who has lived in her home for 40 years, insisted that any townhome development would negatively impact the rural character of the area.

"Yes, around the corner, down the road, there are townhouses, but in this area it's single family homes," she said, and cited the narrowness of the roads, the lack of sidewalks and a cul de sac for emergency vehicles, and environmental and traffic concerns.

"A no vote is an appropriate vote," she said.

Parsani also accused the developer of buying property with an empty house on it and allowing it to deteriorate for the sole purpose of erecting a future townhouse development.

As the board members were polled for their opinions of the project, it quicly became apparent that there was a divide: Four members—Steve Dickens, Saurin Pathak, Brian Kelley, Bernard Berkowitz—were opposed, largely over the issue of density. 

"If you were to reduce the density of units to 2, 18 units, I would see the project more favorably," said Pathak. When the plan was first proposed, it had 38 units, which was cut to 20 in answer to board member concerns.

Amil Shah, Loretta Gragnani, Steve Cappadonna and Iracane said they were in favor.

O'Neill then stated that the developer was willing to cut the number of units to 18.

As the board pondered discussing the possibility of lower density, Rago spoke.

"This board is at the one-foot line," he said. "Vote on this application. If the applicant wants to come back with a new application for 18 units, fine. But to bring everyone to the edge and then say don't vote and amend is not fair to anyone."

"Mr. Rago, for the first time I agree with you," said Iracane.

The board voted and the 20-unit application was rejected by a vote of 4-4.

"I guess the application is denied for now," said the board president. "This week."