Application Not Heard Due To Absent MLUB Members

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Published: October 15, 2012 @ 5:23 PM EDT
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At last month’s Municipal Land Use Board (MLUB) meeting, Mr. and Mrs. Capone were ready to have the application for their bulk variance heard and voted on. After months of filing, paying for certified plans and surveys, submitting paperwork, budgeting for their proposal, re-filing to address observations by the Construction Office, and paying to notify homeowners in the legally required distance, they finally were at the final important stage of their application; they were going to present their case – along with exhibits – to the MLUB and hopefully have their variance approved.

At first the meeting could not even begin because there was no quorum for the seven (7) member board that could have continued the meeting during the Capones’ application hearing. In attendance at 7 p.m. – the appointed start of the meeting – were MLUB President Loren Harms, Mayor Joseph Accardi, John Stephen, Glen Costello, and Ralph Ortiz. Even though a majority of five (5) members were present, the mayor would have to recuse himself from the meeting during the application which would leave only four (4) members and, therefore, no quorum. Carl Pluchino was contacted and arrived at the meeting about 15 minutes later to have a quorum for the entire duration of the meeting.

It was when the Capone family approached the lowered podium that they were notified by President Harms that due to the lack of two members there was a choice they had to make regarding their application hearing.

“Tonight we only have five members of a seven member board. You need two-thirds,” President Harms explained from the dais referring to the fact that a 2/3 majority was needed to approve their variance, “If we had seven members here, you would only need five. At this point right now, you need all five votes. It is your decision whether we proceed tonight or we wait until next month to where you have a seven member board. It’s all up to you.”

Mrs. Capone asked from the audience if she and her husband would have to re-notify the surrounding neighborhood – one of the significant expenses incurred when applying for a variance. Acting MLUB Attorney Nicholas Giuditta stated that would not be necessary, “The answer is we would announce from here that the meeting is carried . . . so you would not have to re-notice in this kind of situation since we’re here. We would just announce it from here.”

“So basically we need a unanimous ‘yes’ vote tonight?”, Mrs. Capone asked the Board.

“Yes,” was the MLUB Attorney’s response.

“And if one says ‘no’, what happens?”, she asked.

“It’s done. It fails,” responded the MLUB President, stating that the application would be denied. He then went on to apologize for the situation, “We have have no control over the people who do not come. I’m sorry. I apologize.”

Mr. Capone spoke up and stated they have been in the process with this variance since April of this year.

“I think I’d rather wait till there’s more voting member because if one person says ‘no’,” Mr. Capone said, realizing that the application would have a better chance of being approved with the leeway of two additional members, “I think we’ll wait.”

With their decision made, the Board stated that the application would be carried until the next scheduled MLUB meeting, which is tonight.

When a member is not in attendance due to noted circumstances, it is customarily read into the record as  ‘On vacation’, ‘Called and will be late’, ‘Is at work’, or ‘Is attending to personal matters’. During the roll call of members that evening, Gail Scaglione, the MLUB recording secretary, read off the names of members and simply said ‘Not Present’ when announcing Frank Gallicchio, Al Nitche, John Velazquez, Jay Robaina, and Diane Kurz. This usually denotes that no notice was given by an absent member to the Board via e-mail, phone, or written correspondence.