Zoning Board Must Hear Town Center Proposal, Judge Rules Court will be final arbiter of which zoning rules apply

By Shanna Williams

MIDDLETOWN – State Superior Court Judge Lawrence M. Lawson issued two decisions regarding the Mountain Hill LLC case against the Middletown Township Zoning Board of Adjustment, but opinions differ about what the rulings mean for the future of the controversial proposal.

Mountain Hill is the company that proposed the Town Center development, which would be located on Route 35 between Kings Highway and Kanes Lane . September 2000 was the first time Mountain Hill submitted an application to the zoning board for the project. The plan called for four single-family homes, four apartments and a department store. Fifteen public hearings were held regarding the plan beginning in March 2002. In June 2003, the zoning board adopted a resolution denying the application. This resulted in a number of lawsuits.

The town's master plan, adopted on Oct. 27 2004, re-zoned the property to be an "active adult community zone" (AAC) and the Township Committee approved the zone change on Dec. 6 2004. The property had been zoned as a PD zone, planned development, and an M-1 zone, light industrial. After the Dec. 6 vote by the committee, all the property was zoned for active adult community use.

Lawson's decision was that all the property lots on the 138 acres can be combined into one property. Initially the zoning board said because a zone line was present on the property it could not be combined into one.

Lawson ruled that the zoning board's decision regarding the buffer zones and setbacks for buildings was "arbitrary, capricious, and unreasonable," court documents said. According to Gary Fox, the attorney representing Mountain Hill, this decision means the size of the project can increase because they do not have to worry about the setbacks if it is all one property.

Lawson, however, agreed with the zoning board about their ruling regarding driveways connecting the two zones. Fox said they can not have cars driving from the PD zone to the M-1 zone because the zones allow different uses. "We could have one-way driveways from the M-1 zone into the PD because everything that we are proposing in the M-1 are allowed in the PD," Fox said. He said this would not cause a problem for the project because there are about 13 entrances and exits proposed for the site.

Fox said Mountain Hill got a "monster ruling" saying that the zoning board must hear their proposal for the project.

Middletown filed a restraining order in October 2003 against Mountain Hill, prohibiting them from filing any more proposals. The State Court issued an order in December 2003 prohibiting Mountain Hill to show any new proposals. Court documents cite the reason for the State Court's decision as "due to the numerous applications that had been previously filed by Mountain Hill regarding its proposed ‘ Town Center ,' as well as the multiple lawsuits that were pending in the Superior Court arising out of the same project." Both restraints have been lifted and Mountain Hill can show its October 2003 application before the Planning Board.

"This matter arises out of the complex and tortured history surrounding Mountain Hill's efforts to construct a ‘Town Center' in Middletown Township," court documents said about the decision to lift any restrictions against Mountain Hill proposing the project.

Fox said Lawson's decision stated that the Middletown Planning Board would have to hear the site plan application using the old zoning ordinances. "It doesn't matter whether they re-zoned it. It doesn't matter whether the new ordinance is good or bad. It doesn't matter," Fox said.

Deputy Mayor Rosemarie D. Peters said it is unclear as to which zoning ordinances the planning board will ultimately have to hear the proposal under. "It's a little confusing to a lot of people trying to decipher exactly what it means," Peters said. She said it seems that the planning board would have to hear the town center proposal using the old zoning so the judge could then decide which zoning should apply. "It would seem to me more logical to make a decision as to whether the new zoning ordinance is valid and then that would decide under what zoning an application should be heard," Peters said.

"Our hope, obviously, is that the AAC zoning change remains in effect because I think there is broad support for that within the township," Peters said.

According to court documents, the matter is still undecided. "The Planning Board is hereby directed to review Mountain Hill's October 2003 Application to determine whether the application is entitled to approval on an ‘as of right' basis under the Township's old PD/M1 zoning ordinances. Thereafter, the Court will make a determination on whether the Township's new AAC Ordinance should apply under the time of decision rule," the documents said. Lawson has retained jurisdiction over the case, meaning that the decision as to which zoning ordinances should apply will be his decision.

Fox said Lawson's retaining jurisdiction is one of the most significant rulings because "its not like if your unhappy with something that happens you have to start a new lawsuit with all those delays." He said this makes dealing with any other problems that might arise more efficient.

Fox said "we won" about the court decisions. He said it was a "huge, significant ruling on our part. It allows us to do things on the plan that we had previously proposed."

Bernard Reilly, township attorney, said "We're still evaluating the opinion and are not sure of the next step." He said he is confident the re-zoning of the property to an active adult community will prevail and prevent the development.

Reilly said the town center has been the major issue for the past three elections in Middletown . "In each election the people have spoken loud and clear that they don't think the town center is a good idea," Reilly said. "The will of the electorate and the vote of the dually elected township committee, I think, will prevail in the end," he said.

Mayor Thomas G. Hall said the decision is "pretty far reaching in terms of its impact on local municipalities to regulate land use." He said the township committee plans on reviewing the decision with their lawyers to plan their next course of action.

"I think it introduces an entirely new dynamic since Assemblyman Azzolina is up for election this year," Hall said. Middletown is part of Azzolina's district and the town center could become an issue during November's election. "I can tell you from first hand that the vast majority of residents are opposed to the town center as it's proposed," Hall said. "I suspect pretty shortly, we will hear pretty loudly from the community," he continued.

"It was a very upsetting decision to us in Middletown because we felt that all the hard work that the township committee and our various boards had done over the past few years was basically eliminated," Peters said.

"I think the town center has very, very little support in town," Peters said. She said residents are fearful as to how the town center was going to change and impact Middletown . "There were a lot of ramifications that made it undesirable to most people I have spoken with," Peters said about the town center.