Friday, January 18, 2013

Potential Conflict of Interest Claim Made in Temple Case

Zoning Board Planner John Chadwick IV, Chairman Robert Iracane and Attorney George Johnson were voted in to serve in their positions for 2013. Credit Natalie Davis
Zoning Board Planner John Chadwick IV,
Chairman Robert Iracane and Attorney George
Johnson were voted in to serve in their positions
for 2013. Credit Natalie Davis
Parsippany Pitch- The Parsippany-Troy Hills Zoning Board of Adjustment met Wednesday night to take up yet again the International Society of Krishna Consciousness' application to construct a temple in the area of Baldwin and Troy roads. Only one witness went under cross-examination before the meeting was adjourned with the years-long hearing on the proposal set to continue at the body's Feb. 6 meeting.
The meeting lasted about two hours, much shorter than has been usual in deliberations of the ISKCON application. It likely would have gone longer, but one witness slated to testify had to bow out for the evening due to a family emergency.
There was still action, however: Before the case could resume, Board Attorney George Johnson announced that the ZBA had to look at a potential conflict of interest involving board member Saurin Pathak that might require a separate hearing.
The accusation of a conflict came from Joel Murphy, an attorney representing Baldwin Ventures, a business on Baldwin Road that opposes the temple proposal.
Murphy's complaint originated after an Oct. 17 exchange between Pathak and Hal Simoff, a professional traffic engineer who was a witness for the opposition.
The lawyer took issue with a comment Pathak made during Simoff's testimony.
At the time, the engineer talked about the temple ISKCON operates in Montville and compared it with the religious group's Parsippany plan, which would include a 3,000 square foot multipurpose room. Simoff's contention was that the room could be used for purposes that violate conditions that might be imposed to win zoning approval.
On that night, Pathak took issue with the comparison.
"You're not comparing apples to apples," he said. "The old building doesn't have a multi-purpose room."
This led Murphy to conclude that Pathak may have had some sort of relationship with the temple that could constitute a conflict.
Johnson asked Pathak if he had ever visited the Montville temple. He said yes, about five years ago.
Pathak, who was on the Board of Adjustment at the time, said his visit came a year or so before he knew about ISKCON's Parsippany application.
"I was just tagging along with a neighbor and friend of mine," he explained. "We went there as a curiosity, on a casual basis. I remember it was an evening and some sort of worship was going on. I think it [was] a weekend, that's my recollection, but I'm not sure."
Johnson asked Pathak if he or any friend or family member who currently is or ever was a member of ISKCON's "sect of Hinduism."
Pathak said no.
"This is like any application for any religious facility we've heard," Pathak said in his defense, adding he had no reason to have any bias.
Murphy disagreed, but Johnson pointed out that board members often have some familiarity with places and situations they might encounter when hearing applications.
Pathak calmly answered questions from the attorney and other board members, asserting that he was not at the temple as an architect and that he was not soliciting work.
Ultimately, Chairman Robert Iracane asked the board members if they were satisfied with their colleague's answers.
"His visit to the temple in Montville was prior to this application," said board member Bernard Berkowitz. "He went there for his own personal reasons. If he was there after the application started, that would be another issue. I think his reaction was natural.
"We should move forward."
Member Loretta Gragnani stated her agreement with Berkowitz.
Iracane then offered the board some advice.
"We have to be very cautious in what we do and what we say," he said. "Be cautious about comments, the inflection of your voice. We're here to judge based on testimony given."
The deliberation then resumed with a cross-examination of Simoff by attorney Robert Garofalo of Garofalo and O'Neill, the firm representing ISKCON.
Garofalo questioned Simoff aggressively on the issue of how much parking space would be needed should a Parsippany temple win approval. The two sparred over how the number of spaces should be determined and whether, as the engineer warned, the applicant might secretly be planning an expansion that would bring more people and more vehicle traffic into the Baldwin Road area.
In previous testimony, numerous witnesses contended that the area already was burdened with too much traffic congestion.
The attorney asked Simoff if he only had his expertise to prove his Oct. 17 statement that increasing floor square footage fourfold would mean a similar increase in parking demand.
"Based on my expertise, yes," he said, adding that he also had statistics from the Institute of Traffic Engineers.
"Any other materials or reports ... to back up that conclusion?" Garofalo asked, leading to a back and forth between the two on what constitutes credible evidence.
Simoff finally had had enough, it appeared.
"You'd better stop asking me questions," he said. "I am not going to give you the answer you want."
"Oh, so you don't have anything to back that up," countered the attorney. "Is it your testimony that other rooms [within the proposed temple] could become prayer halls?"
Simoff said his point was also supported by a letter sent to the Zoning Board from Edward Snieckus of Burgis Associates, who is the Planning Board's professional planner.
That letter, which presented an expert opinion requested under a directive from an as yet unknown Parsippany official, but not solicted by the ZBA, was dismissed by the board chair on Oct. 17. At the time, Iracane agreed with Garofalo that the Planning Board's planner had no standing before the Zoning Board.
Snieckus wrote in his assessment of the ISKCON application that he was doing so "on behalf of the township of Parsippany-Troy Hills."
In October, Patch submitted an Open Public Records Act request seeking to determine what town official or department had directed Snieckus to draft the letter.
On Jan. 2, Municipal Clerk Yancy Wazirmas, after many weeks of delays, sent along a copy of the letter, but this was not what was requested. Patch asked for copies of any written communications between the planner and the mayor or some member of his administration. An e-mail reiterating the request still awaits a response.
Garofalo continued his questioning of Simoff, who said he was concerned that the temple would turn various parts of the building, such as its cafeteria, into prayer space.
"Based upon your experience, [the temple] may very well change uses contrary to approval?" he asked. "Would you call that an illegal expansion?"
Simoff said no.
"If I take a kitchen and use it as a prayer hall, is that illegal?"
Simoff faltered when attempting a response, but finally gave Garafalo the answer he sought.
"If you change a cafeteria into a prayer hall, yes," he conceded. "There are large spaces not being used, they could become prayer rooms."
"And you agree that that's illegal. If the storage room ... is expanded and they use it as prayer room, that's illegal?"
"I don't know," Simoff said.
"You know," Garofalo said, telling the board, "He surely knows."
"It violates conditions of approval,"insisted the engineer.
The lawyer moved to another point, indicating that with combined uses, the amount of parking must be determined taking into account the various uses.
"If I have a church and a cafeteria or kitchen, is that a principal or accessory use?"
"My feeling is you have to go with gross square footage," Simoff said.
"You can't tell me whether its principal or accessory use?"
"It's part of a use," Simoff said. "I can't tell you. I haven't studied the definition of principal or accessory in Parsippany."
"Didn't you represent objectors in another Hindu temple case?" the lawyer asked.
"It was a case before a north Bergen Board of Adjustment," said Simoff. "I represented the Zoning Board. They denied the case. I recommended that they deny the application."
Member Loretta Gragnani asked Garofalo whether there had been testimony that on holy days parking would be available at nearby facilities.
"Did we ever get a letter stating they could have permission?" she asked.
Garofalo said that two years ago, an office building at 1259 Route 46 had given written approval.
Board Planner John Chadwick IV then reminded opposing attorney Joel Murphy that in October he'd said he would give the board documents comparing Sunday parking needs for different types of worship space.
Murphy indicated that he did, for a church and for a mosque.
Garofalo said he had those comparisons too, though his documents included parking figures for synagogues as well.
"How'd you get them?" a visibly surprised Chadwick asked.
Garofalo earned a round of a laughter with his joking response.
"A spy!"
Chadwick reminded Simoff that the board was dealing with a Hindu temple, not a mosque. The engineer explained in response that he used a Muslim house of worship as a comparison tool because, like a Hindu temple, it does not have fixed seating.
Garofalo wondered aloud why the opposition would not rely on the Parsippany parking ordinance to determine what the number of spaces should be.
The [Institute of Traffic Engineers] publication came after the ordinance, so it has more information," he said.
"Do you think it supplants the Parsippany-Troy Hills ordinance?"
"No," the engineer replied, "it just has more data."
Simoff added that since worship space makes up only 9 percent of the temple proposal, he considered it an accessory, not principal, use.
Opposition attorney Gary Hall, representing the historic Kimball House and its owners, joined the questioning. He asked Simoff how he determined the parking need for the temple.
Simoff said he believed parking for a Parsippany temple would be 1.5-1.75 times the amount of parking at the Montville site.
"The site plan suggests it [complies with] the ordinance and the Snieckus report doesn't," said the engineer. "When you don't conform to everything, everything is open to review."
With that, the board approved a motion to adjourn and to continue with the next witness at its Feb. 6 meeting.
At the start of the gathering, the ZBA held its new year's reorganization. Without opposition, Chair Robert Iracane and Vice Chair George F. Kimmey were approved to serve another year, as were Board Attorney George Johnson, Board Planner John Chadwick IV, Board Secretary Harriet Jacobs and Board Engineer Gordon Meth.

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