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Judge
rules for Town Square
Planning
Board hearing ordered
Published
in the
Asbury Park
Press 03/23/05
By ANDREA
ALEXANDER
KEYPORT BUREAU MIDDLETOWN — A Superior Court judge has lifted
an injunction against the developer of the proposed town center
and ordered the Planning Board to begin hearing an application
for the $150 million project, which has been stalled in court
for more than a year.
The ruling, issued Monday by Judge Lawrence M. Lawson, has the
developer declaring a significant victory in a nearly five-year
fight over the plan to build stores, offices and apartments on a
vacant Route 35 tract. The decision could make it possible to
win approval for the project by the end of the year, said Gary
Fox, attorney for the developer.
"It
is a 100 percent win," Fox said. "What we argued is
what we got. . . . We are hopeful that we will have a project
approved in 2005."
Township officials, however, are not admitting defeat in their
fight to stop the project and caution that the ruling does not
guarantee approval. The township is considering whether it can
appeal, attorney Bernard Reilly said.
Residents who oppose the project were disappointed when they
learned of the ruling.
"It is a very sad day for
Middletown
if this has to be revisited," Linda Gunneson said.
"After all the time and debate the developer is still
trying to force this down the throats of the majority of
residents who don't want it."
At
odds since 2000
Last
year, the Township Committee adopted new zoning that would allow
for age-restricted housing on the property — 138 acres along
Route 35 North owned by the family of Assemblyman Joseph
Azzolina, R-Monmouth — instead of the town center.
But Lawson's order directs the Planning Board to consider the
application under the old zoning for the property. The court
will determine if the new zoning ordinance should stand after
the Planning Board rules on the application, Lawson states in
the decision.
The developer, Mountain Hill LLC, has been locked in a fight
with the township over the project since September 2000.
The Zoning Board rejected an application for the project nearly
two years ago. While the first application was pending, the
developer filed additional applications seeking to have the
proposal heard instead before the Planning Board.
Lawson ordered the Planning Board to hear an application the
developer filed in October 2003 for a 1.2-million-square-foot
development.
"Ultimately I think this is all a waste because the zoning
was changed," Reilly said. "I don't know it is
possible to revive something that the town has changed the
zoning on in a legitimate and proper manner."
Fox had argued that the injunction against the developer was
unfair because the township was able to change the zoning on the
property while Mountain Hill was barred from taking action until
the court resolved litigation over the project.
The developer would have won approval for the application filed
in October 2003 — before the Township Committee changed the
zoning last April — if the judge had not issued the
injunction, Fox had argued. He said that application complied
with township zoning.
The Planning Board does not "have the discretion to deny an
application if it meets the ordinance," Fox said.
No
guarantee, says judge
"There
is no guarantee" the project will be approved, Lawson said
when reached by telephone Tuesday.
"Everyone keeps talking about this . . . plan" that
supposedly complies with the zoning, Lawson said. "The
court has to determine if there is (complying) plan and if
something was done improper by the town."
Then the court can rule on which zoning should stand: zoning
that allows for the town center, or zoning that allows for
age-restricted housing, Lawson said.
Fox said the developer is reviewing recent court decisions
regarding zoning regulations that could determine the final size
and scope of the project while making plans to proceed with an
application.
Committeewoman Rosemarie D. Peters said she is concerned the
ruling takes authority away from township officials.
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