Your Turn
David Smith
Guest Column
‘Attic’ provides attractive tax loophole for applicants

In voting 4-1 Monday night to pass a loophole amendment to the borough’s land use ordinance, the Fair Haven Council both confirmed that a building permit had been illegally issued to a Brown’s Lane resident and then retroactively covered the tracks of the Zoning Board attorney on whose instructions the permit was issued.

And so, the Brown’s Lane controversy continues — aided and abetted by a bizarre ruling by a judge who was twice earlier overruled by the Superior Court appellate division — and a borough, which continues to look the other way and do everything possible to successfully usher an overly ambitious application to its successful completion.

A year ago, the Superior Court appellate division — for the second time — struck down the Ridgeway Zoning Board decision (upheld twice by Judge Lawrence Lawson). In voiding the decision, the appellate division ordered the application to be remanded to the board for further action.

However, Zoning Board attorney John Colannino unilaterally instructed the borough construction official to issue a permit, ignoring the court’s ruling — not to mention a borough ordinance that any property with a preexisting nonconformity is subject to a variance. In issuing the permit, Colannino single-handedly put an end to the six-year debate, counting on allowing the applicant to take advantage of a perceived definitional loophole, thought to have been created when the Borough Council exempted "attic" space from the calculation of habitable living space. What Colannino didn’t count on was that due to a procedural error, the loophole was never created in the first place ... at least not until Monday night.

The amendment is clearly flawed — defining "attic space" as any space not accessible by way of permanent stairs (no matter how large or potentially habitable). By failing to properly decipher attic space from living space, the amendment leaves the door wide open for serious and costly abuse. Not only could an applicant take advantage of this definitional deficiency and build well beyond allowable limits, but since the otherwise livable space is defined as an "attic," the applicant could have an attractive property tax loophole as well.

Talk about having your cake and eating it too.

So when is an attic not an attic? Is it an attic if it were originally designed as second-floor living space above a large garage, complete with access from an adjacent second-floor hallway or room? Is it an attic when it has 3-foot knee walls, windows and a roof peak roughly as high as the second-story roofline? Is it an attic simply because, for appearances you sheetrock over a second-floor doorway and install fold-down stairs in order to take advantage of a definitional loophole in a zoning ordinance? Does it remain an attic after the final inspections and tax evaluations are made by the borough and the doorway that was previously eliminated is magically installed?

These are not theoretical questions. These are the very real questions that were never asked at the May 2004 court-ordered Zoning Board remand hearing because Judge Lawson predetermined the outcome by banning public notification, debate and cross examination. Colannino and the Zoning Board were only all too pleased to carry out Judge Lawson’s instructions — turning a blind eye to the loophole — as did the mayor and council on Monday night.

Additionally — by circumventing the Superior Court order for a new hearing — Colannino has successfully "whistled past the graveyard" by suppressing the 1999 CRCG archaeological report, which concluded there is "a distinct possibility" of burials in the area of construction. Although commissioned by the borough, this study has never been reviewed by the Zoning Board or placed on the record.

Despite the mess created by Colannino and an unwitting Judge Lawson, the council maintains it still has a chance to "get it right," acknowledging that the loophole amendment passed Monday night could be re-evaluated some time in the future. How strange they wouldn’t want to get it right now, instead of creating a construction and a tax loophole at a time when the borough can least afford either.

Judge Lawson and the Borough Council have seriously underestimated the impact this application has — and will have — on the residents of Fair Haven. Precedence has now been set that one no longer needs a variance simply because they have a preexisting nonconformity — not a bad thing if adopted by ordinance, but it could create a real legal mess for the borough in the short run.

Additionally, in covering Colannino’s tracks, an attractive loophole is not only retroactively created for the Ridgeways — but for anyone else who wants to overbuild and be undertaxed. Ironically, the Ridgeways have portrayed themselves as victims, but they’ve been the beneficiaries of six years of special treatment by the borough, which has already invested more than $25,000 — most of which has gone into Colannino’s pocket — to defend a series of illegal decisions.

What’s next? The avenues for appeal are more plentiful than ever, but the stakes are higher for everyone except the Ridgeways. They have built their addition at warp speed with the full knowledge that when and if the superior court shoots down their variance for the third time — requiring them to dismantle the illegal dwelling — they’ll have a juicy lawsuit of their own against a borough, which improperly emboldened them with the permit to begin with.

Recognizing the borough has foolishly immunized the Ridgeways from the effects of future litigation while doubling up on its own exposure, on Monday night we informed the council of our willingness to end all litigation in return for some small concessions, which include Colannino’s removal and the recognition of the historical significance of Brown’s Lane. The ball is in their court and their next move will speak volumes about their intentions, while either setting the stage for closure or continued litigation.

David Smith is a resident of Fair Haven