Dec. 7, 2020: WILL JACKSON TOWNSHIP RESIDENT'S RIGHTS BE VIOLATED?
Against the wishes of Jackson residents, the Jackson Township planning board and the good sense of any right thinking person, the application for Jackson Parke South, already before the planning board, will continue tomorrow night. Superior Court Judge Mark Troncone has ordered this meeting to proceed under "virtual meeting" protocols, a direct assault on the Jackson Township planning board's standard procedures and an egregious violation of the rights of stakeholders in the outcome of the application.
To understand the significance of Troncone's order, one must first understand that the planning board is a quasi-judicial body that operates under very strict protocols. In this setting, the planning board members will hear and make decisions on development applications that come before them.
Board members acting in a quasi-judicial capacity, when exercising powers granted to them to make land use decisions, must make their decisions based on the evidence produced during the hearing and “uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action.” Kramer v. Sea Girt Board of Adj., 45 N.J. 268, 280 (1965).
Under normal conditions, the format for planning board proceedings mimic those that are used in civil and criminal court proceedings in as much as the prosecution, or in this case the applicant, presents their case first, one witness at a time.
They build their case by introducing evidence and presenting witness testimony that contributes to the merits of their claim. That witness testimony is bought and paid for by the applicant much like an expert witness might be compensated in a regular court proceeding. In both scenarios, the prosecution or applicant have prepared and rehearsed their witnesses to provide reliable testimony.
IMMEDIATELY after the prosecution (applicant) concludes their examination of their witness, the defense, or in this case those that oppose the application, are given the opportunity to cross examine the witness in an effort to diminish the credibility of that witness and to challenge the voracity of any evidence submitted during their testimony. It is typically during this time that the judge/jury would make observations of the witness' demeanor, body language and listen intently for any evidence of conflicting testimony. This is crucial when making decisions, when all other things are equal.
Under cross examination, the defense (opposition) can shake the witness' testimony given under direct examination by asking questions and then follow up questions that result from replies given by the witness. This back and forth is a CRITICAL component of the process and tends to be far more revealing than direct testimony. Perhaps most important, the judge (planning board members) will take under consideration any inconsistencies and observations made during this process.
But that's not what is happening here.
Instead the format that Judge Troncone has ordered allows the applicant to present all of their witnesses and their entire case before any cross examination can begin. Each witness then has the added benefit of reviewing transcripts of their previous testimony, prior to cross examination, to insure that their testimony was complete and accurate. Should they find that they erred, rest assured that they will be well prepared to clean it up under cross examination. This places the defense (opponents) at a distinct disadvantage.
This says nothing of the format that will be made available to the defense (opponents) for their cross examination. Judge Troncone, upon conclusion of the applicant's witness testimony, will decide if members of the defense team (public) will be given a public, in person forum to perform cross examination or if they will be forced to do so in a virtual setting.
Given the number of opponents that wish to be heard, it is inevitable that at the conclusion of a virtual format, some will be left disenfranchised. EVERY RESIDENT that wishes to be heard MUST be heard and every question must be answered. An argument must be made to Judge Troncone that the public portion of this application not be heard until such a time that cross examination can be done in person and safely. Failure to do so would result in yet another appealable element of these proceedings since it deviates from the JAckson Township planning board norms.
If a proceeding before a board lacks recognized elements of a judicial inquiry and impartiality, it may be set aside. Hill Homeowners v. Passaic Zoning Board of Adj., 129 N.J. Super. 170, 179 (Law Div. 1974).
Tomorrow night the application will continue and much like last meeting, the public will be unable to participate in the proceedings. It is more likely than not that the applicant will NOT be able to conclude their testimony tomorrow night and that it will carry over to a future meeting but that cannot be known for sure at this juncture. What we do know is that it is of the utmost importance that Jackson residents attend the meeting tomorrow night to demonstrate to the judge that public interest is high. Although you won't be able to speak, your attendance will be noted and communicated to Judge Troncone as he weighs his decision on how best to move forward.
PLEASE ATTEND MONDAY, DEC. 7, 2020 AT 7:30 via Zoom https://us02web.zoom.us/j/87513774813... Passcode: 594655
IPhone: =13017158592
Against the wishes of Jackson residents, the Jackson Township planning board and the good sense of any right thinking person, the application for Jackson Parke South, already before the planning board, will continue tomorrow night. Superior Court Judge Mark Troncone has ordered this meeting to proceed under "virtual meeting" protocols, a direct assault on the Jackson Township planning board's standard procedures and an egregious violation of the rights of stakeholders in the outcome of the application.
To understand the significance of Troncone's order, one must first understand that the planning board is a quasi-judicial body that operates under very strict protocols. In this setting, the planning board members will hear and make decisions on development applications that come before them.
Board members acting in a quasi-judicial capacity, when exercising powers granted to them to make land use decisions, must make their decisions based on the evidence produced during the hearing and “uninfluenced by extraneous considerations which in other fields might have play in determining purely executive action.” Kramer v. Sea Girt Board of Adj., 45 N.J. 268, 280 (1965).
Under normal conditions, the format for planning board proceedings mimic those that are used in civil and criminal court proceedings in as much as the prosecution, or in this case the applicant, presents their case first, one witness at a time.
They build their case by introducing evidence and presenting witness testimony that contributes to the merits of their claim. That witness testimony is bought and paid for by the applicant much like an expert witness might be compensated in a regular court proceeding. In both scenarios, the prosecution or applicant have prepared and rehearsed their witnesses to provide reliable testimony.
IMMEDIATELY after the prosecution (applicant) concludes their examination of their witness, the defense, or in this case those that oppose the application, are given the opportunity to cross examine the witness in an effort to diminish the credibility of that witness and to challenge the voracity of any evidence submitted during their testimony. It is typically during this time that the judge/jury would make observations of the witness' demeanor, body language and listen intently for any evidence of conflicting testimony. This is crucial when making decisions, when all other things are equal.
Under cross examination, the defense (opposition) can shake the witness' testimony given under direct examination by asking questions and then follow up questions that result from replies given by the witness. This back and forth is a CRITICAL component of the process and tends to be far more revealing than direct testimony. Perhaps most important, the judge (planning board members) will take under consideration any inconsistencies and observations made during this process.
But that's not what is happening here.
Instead the format that Judge Troncone has ordered allows the applicant to present all of their witnesses and their entire case before any cross examination can begin. Each witness then has the added benefit of reviewing transcripts of their previous testimony, prior to cross examination, to insure that their testimony was complete and accurate. Should they find that they erred, rest assured that they will be well prepared to clean it up under cross examination. This places the defense (opponents) at a distinct disadvantage.
This says nothing of the format that will be made available to the defense (opponents) for their cross examination. Judge Troncone, upon conclusion of the applicant's witness testimony, will decide if members of the defense team (public) will be given a public, in person forum to perform cross examination or if they will be forced to do so in a virtual setting.
Given the number of opponents that wish to be heard, it is inevitable that at the conclusion of a virtual format, some will be left disenfranchised. EVERY RESIDENT that wishes to be heard MUST be heard and every question must be answered. An argument must be made to Judge Troncone that the public portion of this application not be heard until such a time that cross examination can be done in person and safely. Failure to do so would result in yet another appealable element of these proceedings since it deviates from the JAckson Township planning board norms.
If a proceeding before a board lacks recognized elements of a judicial inquiry and impartiality, it may be set aside. Hill Homeowners v. Passaic Zoning Board of Adj., 129 N.J. Super. 170, 179 (Law Div. 1974).
Tomorrow night the application will continue and much like last meeting, the public will be unable to participate in the proceedings. It is more likely than not that the applicant will NOT be able to conclude their testimony tomorrow night and that it will carry over to a future meeting but that cannot be known for sure at this juncture. What we do know is that it is of the utmost importance that Jackson residents attend the meeting tomorrow night to demonstrate to the judge that public interest is high. Although you won't be able to speak, your attendance will be noted and communicated to Judge Troncone as he weighs his decision on how best to move forward.
PLEASE ATTEND MONDAY, DEC. 7, 2020 AT 7:30 via Zoom https://us02web.zoom.us/j/87513774813... Passcode: 594655
IPhone: =13017158592