BUILDER AGAIN REJECTED ON TREE APPEAL

Fair Haven planning board members Larry Quigley, foreground, and Pat Drummond with board attorney James Moody at Wednesday’s hearing. (Click to enlarge)

By JOHN T. WARD

With members voicing unvarnished regret over their own votes, Fair Haven’s planning board refused to hear a developer’s second appeal of an aborted tree-removal permit Wednesday night, setting the stage for expected litigation.

Expressing frustration with both the town’s controversial tree ordinance and having to sort through a tangle of arcane legal principles, board members told homebuilder Bob Susser that there was nothing they could do for him in his quest to remove a 60-foot tree that two arborists, including the town’s, have said is healthy but in danger of “catastrophic failure.”

With only four members eligible to vote, the board unanimously found that the new appeal failed to meet the legal criteria of being “substantially different” from the first one in order for the full board to hear it.

“I’m sad about that,” said Alison Dale, one of the four. “I want us to be helpful here.”

The tree in question, a tulip poplar, is smack in the middle of the footprint of one of three houses that Susser has approval to build, under board OK of a subdivision of the property, on Woodland Drive.

Susser bought the property from Elizabeth Lilleston and her husband for $1.5 million in August. But the matter flared into controversy when it became widely known that Lilleston, who as the town’s code official enforces the tree ordinance, had previously issued Susser a permit to remove the tree from the property.

That prompted Mayor Mike Halfacre to order the tree permit rescinded, on the basis of an apparent conflict of interest, and thrust Susser into a series of reviews that even some local officials questioned whether they had the jurisdiction to hold.

Most recently, in December, the planning board voted 3-2 not to allow Susser to remove the tree.

A full appeal of that decision was blocked Wednesday night, after the four who were present and voted at last month’s hearing concluded that the two appeals were not all that different, and rather, in the words of board chairwoman Joan Jay, just “another bite at the apple.”

But the vote came only after prolonged tussling over the critieria for legal constructs such as res judicata, which says, in essence: the matter has been decided; game over.

Along the way, the tree ordinance was repeatedly teed up as weak on guidance to those who have to uphold it, with new member Bob Marchese, who is also on the borough council and has failed in the past to have it abolished, using the phrase, “despite how much I detest the tree ordinance.”

Before it was over, however, Susser made an impassioned plea, telling the board that if he had lived on the property  and asked to take down the poplar – one of some 60 trees on the site – chances are good he would have been approved because two tree experts agreed it was a danger to the house that was directly below.

And even if the permit were denied, he could have appealed to the town council, and almost certainly come away satisfied, he said.

Paraphrasing  Halfacre, Susser said “the council has never denied a homeowner the right to take down a tree.” The borough always exacts a cost, often in the form of replacement trees, but no one has yet been told no, Susser said.

Now, he said, “we are proposing a better legacy for the property,” relocating a number of trees, and replacing three to be cut down with 14 new ones.

Yet, “I’m being treated unequally,” he said.

Jay was almost apologetic in shooting him down.

“Given the framework of the ordinance, I don’t see that we have a choice, and you will have to seek satisfaction elsewhere,” she told the obviously frustrated builder.

Susser, of Rumson, and his lawyer, Brooks Von Arx, declined comment afterward. Several of the board members, however, said they fully expect the town will to have to defend itself in a lawsuit as a result.