August, 2023

• Wall planned, mason hired, stone sourced, ready to start, hoping to finish before leaving town (for 8 months) in early November; didn’t expect to need to file a permit because I was just replacing an existing fence with a shorter fence, completely conforming to local code, that was to be further back from the road than my existing fence.

         

      September/October 2023

• Discussed with lawyer, who confirmed that the planned fence conformed to local code and, because it was replacing existing fence, he did not believe any permit was required, but he suggested getting it anyway, as a “courtesy” to the Borough.
• Fence Permit filed with Rob Rosenberg, who serves part-time as the Borough Code Official.  He advised me verbally that it would likely only take 2-3 days to approve, so it wasn’t going to materially slow my schedule.  10 days later, still having heard nothing about its approval, I visited Mr Rosenberg at the Borough offices, only to realize that my application was still sitting in his inbox, not yet having been reviewed.  He then suggested that I might need to get a survey of my property in order to determine where the roadway right of way (“ROW”) might lie on my property.  I asked why the Borough would need me to tell them where their own ROW’s;  he just recommended that I contract a surveyor to perform a survey (at my expense of $2,000 to $3,000).  At this point I first realized that I was starting to get stuck in a “tarpit of bureaucracy” that, at a minimum, threatened my schedule for project completion. 
• Driving home from that meeting along Talmage Road, I noticed no fewer than 9 other properties (on the same road as my property) that have stone fences nearer to the road than my proposed stone fence.  I went back and asked Mr Rosenberg if all of those properties had applied for, and received approvals for, permits to install these stone fences.  He could not confirm that any of them either applied for or received permits.  In fact, he speculated that it was more likely that none had done so. (A subsequent Open Public Records Act information request confirmed that not a single one of these other stone fences were installed on a permitted basis.)  He suggested that most people simply “do it” without obtaining a permit and that, apparently, enforcement by the Borough has been “lax.”  He didn’t say it directly, but he seemed to be trying to be helpful, so I understood his comments to mean that the permitting process was effectively unnecessary for fences that clearly conform to the local code, as my proposed fence did and does.  There was clearly NO history in the Borough (at least not on Talmage Road) of any enforcement of conforming fences, such as mine, being installed without a permit.   In fact, of the 9 along Talmage Road — all without permits — two were constructed on properties owned by Borough officials at the time!  I concluded that extending the Borough the “courtesy” of filing the permit, as my lawyer had suggested, was likely a mistake, and that I might as well commence my project, in the interest of time, while the Mendham Borough bureaucracy gradually processed my permit application at their leisure.  I told him that I would work to get the survey as soon as possible, which I did, but it ended up taking several weeks just to get the surveyors out to my property.  I commenced work in the meantime.
• We started in late September.  Stone was delivered to my property and the beginning of the stone fence started taking shape within a week – just a small section all the way down near my driveway on Talmage Road. About a week or so into the project, my mason informed me that a Department of Public Works employee had stopped by to tell him that he needed to stop work on the new fence.  After hearing this from my mason, I called the fellow and asked if he had made such a request and, if so, why.  He indicated that he had done so at the direction of Paul Ferreiro, the part-time Borough Engineer, a person who had not previously been involved in this permit process to date. I called Mr Ferreiro to ask if he had directed this communication.  He said that he had.  I asked why.  He indicated that the proposed fence might be located within the Borough’s ROW and, if that were the case, that I would be required to get a “road opening permit” to be able to proceed. I indicated that I had no intent of “opening any road.”  That fact did not seem to matter to Mr Ferreiro.  He just said that I needed to stop the work.
• I asked if we could meet to discuss his concerns.  He told me that he would be in the office the following Wednesday (apparently, he works for the Borough only on Wednesday’s), and that he would be in the office from 11-11:30am if I wanted to discuss the matter with him.  I called my lawyer and asked if I needed to stop my work, based upon this new verbal request by this different Borough official.  My lawyer indicated that he saw no reason to stop work, because my proposed fence was conforming with the Borough code in all ways and because I was just replacing an existing fence.  So, without any formal, written order from the Borough and based upon my lawyer’s guidance at the time, I continued the installation.  A few days later, I met Mr Ferreiro at his office on the day and at the time he had prescribed.  As I walked in, it was clear that he was perturbed that I had continued the work over the ensuing days, since his verbal “stop work” request.  I told him of my lawyer’s guidance and my strict timetable, but that didn’t seem to salve his apparent anger with me.  I then tried to get to substance of the matter. 

                                                              i.      Q: “Why would I need a ‘road opening permit’ if I’m not opening any roads?”  A: “Because, that is what is required.” 

                                                             ii.      Q: “What is the functional purpose of the permit in this case, if I am not actually opening a road?”  A: No response. 

                                                           iii.      Q: “Is there any reason that you can think of for this permit to be denied?”  A: “No.” 

                                                           iv.      Q: “No reasons?  Is it possible that the Borough might want to widen Talmage Road or Cherry Lane in the near future?”  A: “No, we would never be “allowed to do that” by the local residents.”

                                                             v.      Q: “Perhaps the Borough might want to extend the Talmage Road sidewalk this far away from the center of the Borough?”  A: “No, we would never extend the sidewalk that far out.”

                                                           vi.      Q: “Perhaps, the Borough plans to place some underground utilities along the road, and do so more than 4’ from the road into my property?”  A:  “No, we have no plans for any underground utilities, and certainly not that far (more than 4′) away from the road.”

• He simply indicated that this is “the process,” and that I needed to follow it.  I asked how long it would take and he indicated that “road opening permits” required the Borough Council to sign off, which they would do at one of their upcoming monthly meetings, depending upon how quickly I could get him the road opening permit, the survey and accompanying drawings clearly showing the dimensions of the proposed stone fence (he always seemed to want to refer to it as a “wall,” so I do so, as well, sometimes, facetiously) and its distance from the road.  I told him that I would work to file this more extensive submission.  In the meantime, I continue to follow my lawyer’s advice and continued the work.
• Fearing that this could delay the project by months (it’s now been delayed 8 months, as of this writing), I called the mayor, with whom I’ve been acquainted with for about a decade or so, to ask if this was the customary process for such a simple fence replacement project.  She expressed surprise that this project would not have been quickly approved and noted that, in her years of service as mayor, where she presides over every monthly Borough Council meeting, she could not recall a single “road opening permit” application coming before the Borough Council.  She promised to look into it, agreed that I shouldn’t have to “jump through these hoops” to simply replace my fence,  and indicated that she would circle back to me when she had more information.  The call left me hopeful that I might avoid the timing delays and additional expense associated with this Borough bureaucracy.  That hopefulness lasted only one week.  She called me back about a week later with a very different tone in her voice.  She indicated that “it was out of her hands,” that I needed to go through this additional approval process, but she assured me that she was confident that it would ultimately be approved. So, my schedule was, at that point, shot.  My property would now be an eyesore, at least until I was back in Mendham the following summer to “try again.”
• Between these two calls with the Mayor, I received a written Stop Work Order from the Borough Engineer via email.  I visited my lawyer with this in hand to make him aware of it and, to my surprise, his advice now changed quite a bit. He now advised me to stop work.  I asked him why he had changed the advice he had  provided to me just a week before. He just said that this was now his advice.  To this day, I don’t know why he did a “180” on me, but I decided to follow his new advice.  (I also decided to no longer rely upon his services or advice going forward.)  I had my mason stop the work, and no work has transpired since.  I submitted the requested “road opening permit” and the related drawings of the proposed stone fence, complete with dimensions, all as the Borough bureaucracy required. I then heard nothing back and, about a month later, migrated from Mendham to Florida until June (I have resided in Florida for the past 8 years, and now just “vacation” in Mendham for the Summer and part of Autumn).  Unfortunately, piles of stone and my partially installed stone fence just sit there, just waiting for the Borough to “come to its senses.”   8 months later, it still hasn’t.  My apologies to the community for the resulting eyesore.

 

December 2023

• Having received no updates from the Borough for nearly 2 months, I inquired just before Christmas about the status of my “road opening permit” application.  The Borough Clerk indicated that it has been considered at the December Borough Council meeting two weeks prior and it had been “unanimously rejected.”  I was disappointed that no one at the Borough had felt the need to timely make me aware of either when the matter would be heard by the Council or, after it had been decided, what that decision had been.  Moreover, I was quite surprised that it had been “unanimously rejected,” given the impression both Mayor Serrano, and even the ill-tempered Borough Engineer, had given me that this “road opening permit” process was merely a bureaucratic formality.  I asked the Borough official why it was rejected.  She indicated that the Borough Council had asked the Borough Chief of Police to opine on the proposed fence from a “public safety” perspective and that he had determined that it was a “public safety hazard.”  I asked in what way it might be considered such a hazard, given its short height and 4′ setback from the road’s edge.  She could provide no further details.  I emailed 2 of the 6 Borough Council members, with whom I’ve been acquainted over the past 20 years, to understand what concern they had, but neither responded. I emailed again about 10 days later.  Still, no responses.  I called the Mayor to ask what had happened to this “rubber stamping” bureaucratic permit approval process she had previously suggested that “I just needed to go through.”  She “washed her hands” — assuring me that she had not voted against it, since her tie-breaking vote was unnecessary — and feigned ignorance about the particulars, indicating only that she recalled that there had been some “public safety issue.”  She suggested that I discuss it with the Borough Council and, perhaps, file a new application (start the process over). 
• I called the Borough Engineer to ask what public safety hazard this stone fence represented and he simply said that the matter was closed, the application was rejected and not to communicate any further with him about this matter.  This is how our local government “serves” our community. 
• I sent an email to two members of the (6-member) Borough Council with whom I had been pleasantly acquainted for a couple of decades, asking them why they had rejected my application.  These emails were sent to their official Borough email addresses. I received no responses, in any form.  Having heard nothing, a week and a half later, I sent another email making the same request.  I received, once again, no response.  To this day, neither of these people, one a fellow Pastime Club member and another who I typically see once a year socially, has ever even acknowledged my request to simply understand why they personally voted to reject my application.  I have been told by those that better understand the current government that the Borough Council members “feared the former mayor” and that they made no move without the mayor’s prior blessing.  These Borough Council members have been described to me by those more familiar with our current local government as “potted plants.”  This is disappointing for those of us counting upon them to perform the independent, deliberative role they were elected to perform.

 

January 2024

• Now back in Florida, and starting to become suspicious that nefarious behavior may have been at work behind the scenes, I received, in mid-January a formal letter from the Borough’s outside legal counsel — yes, the Borough administration and elected representative were now spending OUR tax dollars on outside lawyers to do their bidding for them.  My first reactions was,
  “Cowards!”  All they had to do was call me, but, instead, they decided to communication with me in this formal manner, I can only assume, in order to try to intimidate me into “stop asking questions.”  This letter informed me that my “road opening permit” was “unanimously rejected” by the Borough Council (remember, I never proposed to actually “open” any road — I am simply installing a fence on MY private property), that the reason was that it was deemed by the Chief of Police to be a public safety hazard because “it would impair visibility for motorists at the intersection of Talmage Road and Cherry Lane” and that I must remove the portion of the fence already constructed (which was not anywhere near that road intersection) immediately.  I was shocked to learn that the nature of the mysterious “public safety hazard,” generally alluded to by the former mayor in our December call, was a visibility obstruction.  Remember, this fence is only about “thigh height.”  No other reason — beyond this visibility concern — was provided as a reason for the rejection of my application.  Only that one.  So, I figured that there may be some misunderstanding or, at the very least, perhaps I could modify the planned fence in a manner sufficient to adequately address any reasonable visibility concern the police chief might have.  In an email response, I informed the Borough’s outside counsel that I would not be in town until June, so I did not plan on removing any portion already built before then, if at all, and that I intended to reach out to the police chief to discuss potential plan modifications that he might find acceptable so that I might reapply for the required permits.  

 

February/March 2024

• A couple of my friends (one, an engineer) were kind enough, in my absence (I’m still living in Florida, of course), to construct a temporary plywood model, exactly replicating the height and location of the proposed stone fence, in order to assess the visibility concern at the intersection.  Sitting in a low lying car (those with the worst visibility), my engineer friend took photos and videos of approaching traffic “around the corner” from both road’s vantage points.  All such pictures and videos confirmed that one could clearly see any approaching vehicles approaching from the “other side of the proposed stone fence.”  Given the very short height of the proposed fence, this was not surprising.  I then emailed these photos and videos to the police chief and called to invite him to come over and see, for himself, how the proposed fence would look.  He was very polite and open minded, and agreed to do so.  He met my friend there and immediately commented to my friend that this was not remotely close to the height that he had been told the fence would be (he said that he had been under the impression that this was to be built to “eye height, standing up”).  He indicated that he now had no remaining concerns about this proposed fence blocking the visibility of motorists and indicated no other “public safety concerns.”  According to my friend, his perspective was “This is fine.”  I was very happy to hear that this surprising obstacle to my application no longer existed.
• Two days later I emailed the Chief, requesting that he send me a simple email indicating that he saw no “public safety hazard” with the proposed fence.  I did not hear back, which was weird because he had been very responsive beforehand.  Two days later, I emailed him again.  No response.  A couple of days later, I called.  I was told that he was not in the office at that time.  I requested that he call me upon his return to the office.  The next day, I received a somewhat cryptic email from him saying that he could not provide the requested email confirmation of his new determination and that “we just needed to let the process proceed.”  My first thought was, “Who got to (threatened) him?”  He has not communicated with me since, even after retiring in September 2024.  I have since heard, through 3rd parties, that he simply “wanted to get out of the middle” and still “doesn’t want to get involved.”
• A few weeks later, I received another formal letter from the Borough’s outside counsel.  It once again indicated that the application remains rejected, the matter is final, the portion of the fence already constructed must be immediately removed, BUT, this time there was a new reason that my proposed fence was deemed to be a “public safety hazard.”  This time it indicated that the Borough was worried that a passing motorist might collide with it.  What that really means is that they are worried more about a the well-being of a passing, irresponsible motorist that veers more than 4′ off the road onto my property and collides with this stone fence than they are about our family being hit by that motorist if the stone fence is not there to protect us when we are enjoying our yard.  Ironic, indeed.  All along, I had informed the Borough that one of the very reasons that I sought to replace my wooden fence and hedge with a more robust stone fence is to keep the drunk and distracted motorists, who are breaking the law by driving off of the road and doing damage to my property, from injuring or killing a member of my family by careening into my front yard (our historic house sits only 30′ from the road, so it doesn’t take much of a head of steam flying down Hardscrabble Road to careen all the way through our yard and hit our house).  I was cleaning up pieces of the car (which had to be towed away) driven by the last guy to do it (three summers ago) on my front door step.  Had anyone been standing in that front yard when it happened, they would have been seriously injured or killed.  So, having been informed of this new reason for the determination that my proposed replacement fence created a “public safety hazard,” I sent an email to the Borough’s outside counsel, the Mayor and those same two Borough Council members asking if the Borough really intended to prioritize the safety of transiting, law-breaking motorists (many of whom are not even from Mendham Borough), over the safety of the property-owning, taxpaying families of the Borough of Mendham.  Other than the mayor saying that she would get back to me (which she didn’t), not a single one of them has ever responded.  It’s been well over a year now.  

 

May-Sep 2024

• I hired a qualified law firm in the Spring of 2024.  This firm has confirmed that my proposed fence is in complete compliance with the Borough municipal code and that there is nothing in the code that prevents installing a fence, regardless of the material from which it is made, in a right of way.   We filed a variety of OPRA requests with the Borough, to which we have received various responses from the Borough. These responses have filled in some of the gaps of our understanding of what’s actually been transpiring “behind closed doors,” but we have more questions.  Most importantly, these OPRA request responses confirm:
  • none of the stone fences along Talmage Road were installed subject to a permit — either filed or approved — and that no enforcement by the Borough has ever occurred. 
  • The record indicates that no Borough Council member, at the December 2024 meeting where The Borough Council rejected my application, asked even a single question before rejecting my application unanimously, and the Borough cannot provide a detailed answer to exactly how any communication from the Chief of Police (sharing his alleged perspective) was presented to the Borough Council at that meeting, or at any other time.
  • The only communication that the Chief of Police had with any other Borough official, according the the Borough’s response to our OPRA request asking for “all such communications,” was an email exchange with Mayor Serrano (you can see it in the Written Communications section of this website), copying Councilman Sullivan, the Borough’s outside counsel, Mr Semrau, and Joyce Bushnell, the Borough Administrator, where he clearly states that any potential concern about visibility he has is conditional on the height of the fence permitted.

 

October 2024

• I emailed the mayor in early October to put very direct, specific questions to her regarding the apparent discrepancies between what she had told me in the past and what we have learned from the responses to the OPRA requests, particularly as it relates to the critical issue of what she really already knew (and had, it appears, orchestrated), but did not divulge to me, at the time of our December 2023 conversation, the apparently deceitful manner in which she did communicate with me at that time and exactly what her role was in the apparent deception of the Chief of Police and Borough Council in November and December of 2023.  She took two full weeks to even acknowledge receipt of the email, promising a response which has not yet arrived (the email exchange can be seen in the Written Communications portion of this web site).
• My law firm, having notified the Borough or certain deficiencies associated with the Borough Council’s previous deliberative process, requested that the Borough Council reconsider this application (which, you may recall, was the next step that the Mayor had suggested to me when I called her to ask why my application had been rejected).  The Borough responded by saying that the matter would not be taken back up and that, if I didn’t like that, any party may be heard during the “public comment” portion of any Borough Council meeting, and that each such party is allotted only 5 minutes in which to address the Borough Council.  A nice little “*$&% you,” in other words.
• I attended that Borough Council meeting, on October 28, 2024.  The meeting was nearly empty and the regular business was concluded within half an hour.  I was given the opportunity to speak during the “public comment” period — there wasn’t anyone else there to speak, if I recall — and the Borough Council and former mayor listened.  They did not stop me.  I spoke for 14 minutes to recount the treatment I had received and what I had learned from OPRA request responses.  I did not get any response from any Council member or the Mayor.  No one seemed to be even slightly offput by the fact that the reason their lawyer had provided me for their rejection of my application was in direct conflict with what the Chief had actually indicated, including via email, only a couple of weeks before their original vote took place.  But, the former mayor did want the fact that they “allowed” me to speak for 14 minutes “read into” the record.  All form, no substance.  Again, more of what you’d expect in the Soviet Union than from your local American community government.

 

December 2024

• In December 2025, I received another email from their outside counsel — cha ching, cha ching, as the meter runs further — demanding that I remove the small section of fence I had installed before I had received the stop work order — and which was located nowhere near the intersection of roads for which they purported to be concerned about a public safety hazard — and, with it for the first time, a formal threat that he Borough would start fining me for every day that it remained standing.  So, they were forcing me to spend money to destroy something that I has spent money to install with the threat of charging me money for non-compliance with their unreasonable demand.    I asked my lawyer about whether or not the Borough would have the right to fine me and he indicated that they could be deemed to have this power, even if I was legally in the right, so I paid to remove the installed section.  What a waste.
• I then had a bunch of loose stone that had to be stored until such time as I am able to install my completely conforming fieldstone fence without the illegal interferences of the local apparatchiks.  So, I piled it up — as neatly as possible for the benefit of the local community — in pretty much exactly the same place the fence would have been installed.  You see, while the Borough does has the ability to reject a non-conforming fence installation — they have no grounds for rejecting my conforming fence, but I have to now prove in court that they are being unreasonable — they have no jurisdiction over where on one’s property one temporarily stores personal property.  I’m trying to minimize the eyesore for the community while I “fight the power” in court.

 

Spring/Summer 2025

• So, what did the Borough — under the “leadership” of the newly appointed (by the same Borough Council) mayor, Jimmy Kelly, who was one of those “potted plant” Council members that voted against my application — do with your taxpayer dollars, after I removed the fence, as they demanded?  It sued me in NJ State Court — a strategic blunder I’ll get to later — to force me to remove from the ROW the loose materials sitting on my property.  The Borough argued — if you can even call it an argument — that my pile of stored stone was in their right of way and that they sought an “emergency” injunction forcing me to remove it.  Now, is this what the Borough bureaucrats really consider an “emergency?”   My guess is that our firefighters, police and EMS personnel — people that understand the true meaning of the word “emergency” — would beg to differ.  The judge, naturally, ruled against them.  Then, not having yet spent enough of your taxpayer dollars, the Borough pushed further to obtain a “normal” injunction (having lost their “emergency” injunction gambit), and lost again.  You should see the judge’s reactions to the Borough’s “arguments,” if you can even call them as such.  I’m reminded of the line in “A Few Good Men” where Demi Moore “objects” in court and, having been overruled by the judge, then makes a point of “strenuously objecting.”  Duly noted, moving right along.  Was the Borough really expecting to win that second ruling after losing the first, or do they simply not care about how much of your money they needlessly waste in their petty pursuit of my total subjugation to their bureaucratic whims.
• So, having lost twice, did they stop spending your taxpayer dollars and give up on this nefarious exercise?  Hell no!  Mayor Kelly’s Borough of Mendham will “march right off that cliff” with your tax dollars.  They are now accelerating the pace at which they spend your taxpayer dollars and have now dragged in the lawyers for the Borough’s liability insurance provider, the Morris County Municipal Joint Insurance Fund, to fight alongside their own “Keystone Kop” lawyers.  What does this mean?  It means that this insurance fund is now also expending money on the Borough’s behalf.  What do insurance companies do when they have to expend money on your behalf?  They raise your insurance premiums, for years to come.  So, we in the Borough will likely have that higher cost to look forward to, as well.  Thank you, Mayor Kelly and Borough Council.  By the way, this also means that other local Morris County municipalities — hear that, Morristown, Randolph, Mendham Township? — will likely have to bear higher insurance costs because of the bad behavior of the Mendham Borough officials.  Insurance companies typically spread the costs associated with one bad apple to the other insureds.  Is this the type of behavior you other municipalities want your insurance fund supporting and defending?

 

Fall 2025

• So, now as we enter October 2025, we have now begun discovery and depositions in our court case, a path the Borough officials may, ironically, have reason to fear, because these individuals will now have to answer questions under oath.  No more hiding behind outside legal counsel.  It’s simple.  You lie under oath, you face the consequences.  Yes, there are now going to be consequences.  They likely weren’t expecting that.  It will be a refreshing change.  We’ve already deposed the Chief, who appears to never have behaved poorly, but was dragged into this and, apparently, misled.  He, once again, confirmed that he had, and still has, no objection to my proposed fence.  Right — NO public safety concerns.  We did not press him to “name names” regarding who in the Borough misled him or regarding his other communications with Borough officials.  Why not?  We may not need to, and he was never one of the “bad apples.”  But, he can always be deposed again, if necessary, to dig deeper in search of the truth.
• A word about the Borough’s “strategic blunder” in bringing suit against me in NJ State Court.  You may wonder why I had not previously sued the Borough for their obvious malfeasance.  Well, I considered doing so well over a year ago, but my lawyer warned me that I would just get placed into a local court, overseen by a judge appointed by the very same Mendham Borough officials, where I could be bled of legal expenses without a shot at fair jurisprudence, well before having an opportunity to appeal to a higher, unbiased court.  The system was, as I understood it, likely to be rigged against me.  So, I demurred.  When my lawyer found out they proactively sued me in NJ State Court, where the local influence and/or interference would not likely cloud, he explained to me just how large a strategic blunder this was on their part.  Once sued, one can counterclaim in the same jurisdiction, which we have done.  So, as perhaps my last public service to the people of the Borough of Mendham, I am now spending my money, not only to defend my self, but also to finance the discovery and depositions that will, hopefully, shed light on the nefarious machinations of our local Borough government officials.  There is no longer any place for them to hide.

 

More to come.  Stay tuned.