DEVELOPER: To try again / PROPOSED: $150M project

Town center application planned

Published in the Asbury Park Press 03/29/05

By ANDREA ALEXANDER
KEYPORT BUREAU

MIDDLETOWN — The developer of the proposed "town center" is getting ready to present an application to the Planning Board, as township officials weigh their options to stop the project in the continuation of a nearly five-year battle.

Mountain Hill LLC, the developer, is moving forward a week after Superior Court Judge Lawrence M. Lawson lifted an injunction against the company and ordered the board to consider a proposal for the $150 million development. Mountain Hill is run by Joseph Azzolina Jr. and Philip Scaduto. The project would include apartments, a supermarket, a department store, health club and restaurants.

Township officials, however, have expressed doubts that the board has the authority to hear an application for the project because the zoning on the developer's property was changed last year. The current zoning allows for age-restricted housing at the site, owned by the family of Assemblyman Joseph Azzolina, R-Monmouth. Lawson ordered the board to consider the application under the old zoning.

The court will determine if the new zoning ordinance should stand after the board rules on the application, Lawson

states in the decision.

Township attorneys said they did not think the board could act under those circumstances.

"We are only authorized to operate under the law, and the law does not permit this zoning," Planning Board Attorney Lawrence Carton said.

"Planning boards are subject to ordinances and statutes," he said. "What I think we are being asked to do is deal with a hypothetical situation, and I don't think we are allowed to do that."

Gary Fox, an attorney for the developer, said the township must follow the judge's order.

"The judge has ordered them to do it," Fox said. "I presume their attorney will tell them to do what the judge orders. If not, the judge will have to figure out what to do to someone who doesn't listen to the judge's orders."

Township attorneys said they plan to ask Lawson for a clarification of his ruling. Carton said the township might ask Lawson to reconsider, or could appeal his decision.

The ongoing fight has frustrated residents on both sides of the issue.

"I think it has too much going for it to let it slip away," said Bernice Roberts, 74, of Middletown .

She said she is considering organizing a grass-roots group of residents in favor of the project.

"When I first saw the model, I fell in love with it," Roberts said. "It seems to me that it would be an economic boom and a property tax blessing."

Doreen Simonian, 42, said she opposed the project because it would generate too much traffic in her hometown.

"I feel like it is kind of beating a dead horse at this point," she said. "I don't know if we need to go into this again. They have changed the zoning. Let's move on . . . I don't know what this is doing other than wasting money for the (Azzolina) family."

Meanwhile, the developer has abandoned its appeal of a two-year-old Board of Adjustment decision to reject an application for a larger, 1.5 million-square-foot version of the project, Fox said. The developer made a "strategic decision" to concentrate on moving forward with a Planning Board application, he said.

The project had been stalled in the courts for more than a year. While the developer was bound from proceeding with its plans, the Township Committee changed the zoning on the property.

The town center is proposed for a 138-acre tract on Route 35 between Kanes Lane and Kings Highway East , currently anchored by a Spirits Unlimited store. The site features a 30-foot-tall Food Circus clown, an iconic sign, which dates back to the original supermarket owned by the elder Azzolina on that site.

Since the decision last week, the developer has met with its traffic experts, engineers, planners and designers to perfect the application for a 1.2-million-square-foot project to present before the board, Fox said.

The developer needs to make changes to comply with new environmental and transportation regulations adopted by the state since an application for the project was filed with the township in October 2003, Fox said.

Mountain Hill also hopes to make changes to its application to incorporate a recent court ruling regarding zoning regulations that could influence the size of the project, Fox said.

In addition, the developer is waiting for the judge to rule on other disputes over the zoning regulations pertaining to parking garages and retention basins that could allow the developer to build a larger project.

Township attorneys question if the developer could make changes to the application now because the judge ordered the board to hear a version filed in October 2003.

"That would be a new application," said Township Attorney Bernard Reilly. "If we are trying to go back to 2003 without an injunction, he (the developer) would not have been able to tweak the plan based on some decision that would not have come out until '05."