Asbury Park Press

December 22, 2004

By Andrea Alexander

The developer of the proposed “town center” in Middletown asked a state Superior Court judge Tuesday to give a green light for the project, which has been stalled for months by an injunction and township zoning changes.

Gary Fox, attorney for the developer, asked Superior Court Judge Lawrence M. Lawson, sitting in Freehold, to overturn a zoning change that would allow age-restricted housing at the site instead of a “town center.” He also asked Lawson to lift an injunction against the developer and allow the company to proceed with an application for the project before the Middletown Planning Board.

Lawson said he expects to rule on the case within a month.

Fox argued the zoning change should be overturned because Mayor Joan A. Smith has a conflict of interest that should have prevented her from voting on the measure. Smith has done work for the family of the Assemblyman Joseph Azzolina, R-Monmouth, through her business, Attorneys Land Title Agencies Inc.

The family, which also includes Azzolina’s son Joseph Azzolina Jr., and nephew, Philip Scaduto, runs Mountain Hill LLC.

The company is seeking approval to build a mix of office, retail and residential space on 137 acres between Kanes Lane and Kings Highway East along Route 35.

“Whether she intended to be a bad person or not is irrelevant,” Fox told the judge. “She shouldn’t have voted because she is the title agent for members of Mountain Hill so she has a problem.”

Township Attorney Bernard Reilly, however, said the title work Smith’s company performed for the Azzolina family did not create a conflict because the work was done in 1998, before Mountain Hill LLC filed the application for the town center in 2000.

“In 1998, she couldn’t tell the future,” Reilly said.

When the developer asked Smith’s company to do work for the town center, Smith declined to avoid any conflicts, Reilly said.

But Fox and Smith has continued to perform work for the Azzolina family. Her company issued an insurance policy on a title when Judith Azzolina, Joseph Jr.’s sister, refinanced her Long Branch home earlier this year.

All of the assemblyman’s children, nieces and nephews are principals in Monmouth Hill, Fox said. But Reilly said the township was only aware of the interest Joseph Azzolina Jr. and Scaduto had in the project. He said township officials were not aware that other members of the family were part of the development company.

Without Smith’s vote the zoning change would not have passed because four votes were needed to approve the ordinance on the five-member committee. Committeeman Raymond O’Grady opposed the zoning changes.

Lawson grilled Reilly about Smith’s conflict. He compared it to a conflict former township committeeman Rick Brodsky had regarding the town center that led to an ordinance being overturned. Brodsky is an attorney for a law firm that has done work for Mountain Hill.

“How is Ms. Smith’s conflict any different than Mr. Brodsky’s?” Lawson asked, “I am having a hard time separating a conflict from a conflict from a conflict. Tell me like I am a 3-year-old.”

Reilly said Brodsky’s firm was actively involved with Mountain Hill, while Smith had performed a routine transaction in the course of her business for Joseph Azzolina Jr.

“I have gone into Foodtown and bought items,” Reilly said to the judge. Assemblyman Azzolina is president to the Food Circus Foodtown supermarket chain. “Does that mean I am in a conflict?” he asked.

“I have a problem with antennae not going up and her saying, ‘Should I vote or not?’” the judge said.

Meanwhile, the developer filed last week a new complaint in Superior Court seeking to overturn a township master plan adopted in October that supports the zoning change. The company successfully fought in court to have a master plan adopted last year overturned because four Planning Board members belonged to a group that opposed the project.

The 2003 master plan first proposed age-restricted housing instead of a town center at the Route 35 site. The Middletown Township Committee adopting the zoning change in April and adopted an identical measure earlier this month to be in agreement with the latest master plan. In court papers for the new complaint the developer argues that the newest master plan was based on faulty zoning from a master plan that was deemed illegal and was not based on good planning.

Planning Board Attorney Lawrence Carton said the allegations in the new complaint were false.