The application, proposed by Rutherford developer George Mesiha's GFM Development, first appeared before the Board of Adjustment at its Dec. 11 meeting last year. At the time, the applicant needed a use variance and several bulk variances. Near the end of the hearing, in response to the comments made by the board, attorney David Crook bifurcated the application, thus dividing what would have been one vote on the entire application into two votes: one on the use variance and the other on the bulk variances. The board voted to approve the use variance, thus essentially giving the developer a foot in the door, but denied the bulk variances which has prevented the project from proceeding as planned.

"The fact that a variance was permitted doesn't mean that it's now a permitted use," said Planning Board attorney Richard Allen. He said that just because the Board of Adjustment gave the plan partial approval doesn't mean the variance application is no longer in the board's jurisdiction.

"It should stay with the same board," said Allen. "They've heard it. We don't know if it's changed."

"I'm not sure why they sent along the papers to us," said Planning Board Chairman David Porter.

As currently proposed, the development would consist of two 1,200 square foot offices and four 1,400 square foot two-bedroom condos. The building would be three floors with a parking garage on the first floor and all of the office and residential space on the second and third.

The property, 22 Sylvan St., is on a hill immediately behind the Forest Dairy convenience store on Spring Dell. The lot, which is currently empty, used to hold a two-family house even though it's zoned B-3 for commercial use. Crook noted that residential units are a permitted accessory use in B-3 zones and that the development needed a use variance only because the entire first floor would be devoted to parking.

The Board of Adjustment's next meeting is scheduled for March 11. An agenda for the meeting hasn't yet been released.