Five Principals of “Good Government”

Here are five very simple, desirable principles of local governance, with which I suspect virtually everyone in Mendham Borough would agree. Mendham Borough officials have fallen far short on each.

Protect Private Property Rights

First, people who own private property should have the right to utilize that property in a manner they so choose, as long as it does not materially negatively impact the community in which that property is located. If you want to build a home or fence or garage on your private property, you should be permitted to do so, as long as it does not violate any local ordinance.  No aspect of the fieldstone fence I have proposed to install violates any local ordinance. 

Second, the rights of property owners to safely enjoy their property should be prioritized above the rights of trespassing motorists to drive onto that private property and, in doing so, possibly maim or kill those property owners trying to enjoy their own property.  Over our nearly 35 years here, we have had at least half a dozen irresponsible passing motorists lose control of their vehicle and careen onto our property, destroying hedges and fences, where their cars finally come to a stop only 10 feet from our home, strewing car parts and debris throughout our yard, right up to the doorstep of our home.  In some of these cases, had one of us been enjoying our front yard at the time, that person likely would have been injured or killed.  All were distracted while driving.  At least one of them was drunk (with two young children in the car).   Several of these incidents have occurred within the past few years.  They have destroyed my front yard.  So, why does the Borough prioritize the rights of those law-breaking passing motorists above the right to safety of property owners ON THEIR OWN PROPERTY?  I’ve posed this question to them.  They’ve chosen to ignore the question.

Avoid Selective Enforcement

There have been fences (both wood and stone) on my property that have sat to this day within the municipality’s right of way since before I purchased the property nearly 35 years ago.  The Borough never complained about them.  My new proposed stone fence is both shorter in height and located further back from the road than these pre-existing fences, AND my proposed stone fence conforms to the Municipal Code in all manners.  Moreover, there are numerous stone fences on other properties in the Borough, including 7 or 8 of them on the same Talmage Road, 2 of which were installed by Borough officials at the time, all of which are located closer to the road than my proposed stone fence.  Based upon the Borough’s responses to OPRA requests, none of these was permitted and there has never been any enforcement actions taken by the Borough in regard to any of these other stone fences.  Many of these stone fences were installed during the tenure of the current Borough Engineer.  So, why has the Borough selected my proposed fence out for such unique treatment, treatment so inconsistent with both its own Municipal Code and its own historic enforcement behavior?

Avoid Wasting Taxpayer Resources

Mendham Borough has paid, by the hour, for the Borough Engineer and the Borough’s outside legal counsel to work for many hours on this matter.  They have had other full-time Borough employees spend time they may have more productively spent on other matters on this matter.  Why?  What possible benefit for the residents of Mendham Borough could exist from preventing the replacement of a broken down and damaged set of stone and wooden fences with a fieldstone fence that conforms to in every way to the Municipal Code?  Do they object to the investment in the local economy of over $100,000 by the private property owner?  Do they object to the beautification and protection of the second oldest home in Mendham Borough?  It conforms to the Municipal code, so there is no benefit of setting a precedent of adhering to their own Municipal Code.  To the contrary, they are instead setting the precedent of acting in a manner inconsistent with their own Municipal Code.  Why so persistently waste taxpayer resources on such an obvious “lost cause” (they have lost already twice in Court), a cause that was fraught with lies and deception from the outset.  The Borough’s behavior files in the face of fiscal prudence on behalf of its taxpayers.  How much of your money are they willing to spend on this?  It’s already likely tens of thousands of dollars.  If I decide to sue the Borough for over $1 million, and win, how will you feel?  Yes, their insurance might cover much of that cost, but you’ll just be paying it over a number of years in higher taxes to enable the Borough to afford higher insurance rates, as the insurance company recoups its losses.

Preserve Mendham’s Historic Character

I would expect that most in Mendham Borough would like to see its historic character preserved.  Is it possible that the current elected and appointed officials of Mendham Borough would, instead, prefer to see the demise (or replacement) of the second oldest homestead in Mendham Borough, one dating back to decades before the Revolutionary War and one which General Mad Anthony Wayne is rumored to have commandeered during the War.  You know, homes from that era were typically located very close to the road.  There was very little traffic — and none of it speeding or creating any noise, beyond the clopping of hoofs — to worry about, and close proximity to a road eased the daily burdens of life before the advent of machinery (snowblowers, etc).  Our home is located only 30′ from the road.  People drive 35-50 mph on these roads now.  It’s now noisy and dangerous to be so close to these roads.  You can’t simply pick up and move an historic home with stone walls and foundations to be further from the road — and a property owner should not be forced to do so in order to be able to safely enjoy his or her property.  Fieldstone fences were originally built to keep animals (cows, horses, etc) either inside or outside of the fence.  Cars moving at 35-50 mph are far more lethal.  Why not allow an historic home to be protected by a period-appropriate fieldstone fence that conforms to the Municipal Code?  Those cars fly right through a wooden fence — no protection at all.  A stone fence would be far more effective.  Yes, it would might be destroyed, but the humans and home standing behind it stand a far better chance of surviving.  We now have heavy dump trucks coming down Hardscrabble Road all day long, due to construction up the street.  If one of those hits our house, as some cars have almost done over the years — well, I’m sure you can imagine.  In an effort to protect ones family, would the Borough prefer that the home be torn down — and another built to replace it, further back from the road — so a fence could be reasonably placed so far into the property that it would be outside of the right of way that they purport to care so much about?  The Borough’s position is essentially that I can install a new fence, but it has to be at least 15′ back from the road, which would cut my front yard in half, since the house is only 30′ back from the road as it is.  I’ve pointed this out to them, but they don’t seem to care.  So, do they want to allow homeowners to preserve the history of Mendham, at their own private expense, or would they prefer to see that historic character of Mendham Borough simply disappear.  Ours is actually a double lot — one in the Borough, one in the Township, so, as soon as someone less committed than I to preserving this historic homestead assumes ownership, you can pretty much count on two new houses replacing this one very old one.  Our children are all grown up, so we no longer need to pay the hefty property taxes that fund our local schools.  We have chosen to continue to do so because we recognize that others did it for us when our children were in school.  Many just sell and leave as soon as their kids are out of the school system.  We could behave that way, as well, of course.  We just haven’t chosen to.  So, if the Borough’s government is not supportive of maintaining Mendham’s historic character, how will it be preserved?

Responsiveness & Honesty

I know this may be a pipe dream regarding politicians, but I’ve always viewed responsiveness and honesty as admirable traits in public servants.  They do proclaim to be public servants, of course.  I have seen no example of either honesty — to the contrary, I have been served repeated dishonesty — and I can’t possibly see to whom this government is responding in their conduct on this matter — certainly not to me.  At first, the Borough’s behavior simply struck me as bureaucracy run amok, but it quickly became clear that these individuals were colluding, in acts of both omission and commission, to frustrate a local property owner and taxpayer’s reasonable rights, at the expense of both that individual party — me — and the taxpayers and community of Mendham Borough in general.  So, why would we, as Borough residents, elect and appoint (or re-elect and re-appoint) dishonest individuals who go out of their way to be unresponsive and transparent to the very people they are there to serve?  

 

The Borough’s Logical Conundrum

By the way, there is a very interesting conundrum that the Borough will now have to explain, given the existence of two laws that apply in New Jersey.  The Sunshine Law requires that all discussion of any matter before municipal bodies be conducted in a public forum, so that everyone can witness them.   The Open Public Records Act (“OPRA”) requires that any request for information made under this statute be faithfully executed by the municipality to which the request is made.  Typically, any communications that are reasonably protected by attorney-client privilege are not required to be produced subject to such a request, as I understand it.    Now, I’m no lawyer, but here’s what seems to be the conundrum.  According the the Borough’s responses to our OPRA requests, there were NO communications or discussions of any kind with or amongst any members of the Borough Council by any party related to this matter, with the exception of one.  That exception was the Chief of Police’s email to the former mayor, where he copied the outside counsel, the Borough Administrator and just one Borough Council member, Mr. Sullivan.  Remember, were there to have been any discussion, presentation, communications to or amongst the Borough Council, it would have to have occurred in public, because of the Sunshine Law, in which case there would be a public record of such communications.  The Borough has confirmed that no such public (or even documented private) communications had occurred in the way it responded to the OPRA request, by virtue of delivering no such communications.  So, if the Borough Council members never engaged in any discussion, presentation or other types of communications regarding this matter, how would those Borough Council members have known about what Mr Semrau, the Borough outside counsel, purported to me in writing in January 2024, was the reason — the only reason he provided — that the Borough Council unanimously rejected my application, that the Police Chief had determined (which, in fact, he had not, as later discovered by us via an OPRA request response, the Chief’s email) that my proposed fence would be a sightline inhibitor that would make it a “public safety hazard?”  There are only several possibilities:

1. Such public discussions occurred, but he Borough did not respond truthfully to the OPRA request and omitted from their response certain documents evidencing such public discussion/communications.
2. The Borough Council broke the Sunshine Law by discussing the matter in private, rather than in public as required, leaving no public record.  
3. The Borough outside counsel facilitated all discussion in a manner designed to circumvent the Sunshine Law through the guise of attorney-client privilege and the Borough is not obliged to produce communications protected by Attorney-client privilege.  Such circumvention of law would not be a good look for any involved, of course.
4. Incredible powers amongst all involved of mental telepathy (which would still break the Sunshine Law).  

So, even if the Borough Council really did unanimously vote to reject my application without any presentation or discussion of the merits of the decision before them, which strains credulity, it is still the case that the Borough’s legal counsel sent me a written statement attesting to the fact that the Chief of Police had stated something that the outside counsel knew to be factually inaccurate.  Two written documents — the Chief’s November 2023 email, on which the outside counsel, Fred Semrau, was copied and the January 2024 letter from that same outside counsel to me.  Each say something very different about the same simple issue, the Chief’s perspective regarding my proposed fence.  The Chief’s email indicates a potential, conditional concern.  The outside counsel’s letter articulates a definitive determination, so definitive, in fact, that it is the only reason given for the Borough Council’s decision to reject my application.  That lawyer saw the first and wrote the second.  He knew the facts, and then he chose to misrepresent them, in writing.  Not a good look for an “officer of the court.” By virtue of the Borough’s own responses (or lack thereof) to the OPRA requests, we KNOW that this one email from the Police Chief to the former mayor, copying the outside counsel, it the only possible source of information — and a direct source, at that — regarding how the Police Chief actually felt.

 

Quite a conundrum.  Doesn’t look good.