Middletown’s final word
is ‘no’ to big-box retailers
New shopping center zone created; some
business tracts rezoned
MIDDLETOWN — With the passage of a long-debated ordinance, the Township Committee hopes to stop township-wide traffic gridlock before it starts.
Despite a few heated 11th-hour objections, township officials passed the ordinance at their Nov. 20 meeting, banning warehouse-type stores, creating a new shopping center zone and swapping existing business zones.
Mayor Rosemarie Peters called it a first step toward the township’s traffic alleviation goal. Planning Director Anthony Mercantante called it the right move for creating more cohesive zoning conformity throughout town.
To the dismay of some and delight of township officials, the ordinance made a few things clear: There’s no place for "big box," Home Depot-type stores in town; there will be a new highway commercial shopping center [district] zone with strict development parameters; and some smaller businesses will be placed into zones more conforming to their uses.
Those who wanted to build a Home Depot at Route 35 and Crestview Drive, though, maintained until the last minute that prohibiting that type of store use and rezoning was subjective and would not hold up under legal scrutiny.
Nonetheless, the committee unanimously passed the ordinance, declaring that there is no place for Home Depot in town, there is no room for expansion of shopping centers beyond a 15 percent floor area ratio and there is a need to put small businesses in what they deemed more appropriate zoning for their use.
None of the original small business objectors to the ordinance were present at the Nov. 20 public hearing. Township officials took that as a sign that they were satisfied with the changes that affected them.
Under the revised ordinance, about 250 lots currently undersized in the B-3 zone would be moved to a more fitting B-2 zone. Under the ordinance, B-2 and B-3 zones will have a floor area ratio maximum of 25 percent, with a 50-foot buffer requirement in the B-2 zone and a 75-foot buffer requirement in the B-3 zone.
Floor area ratio is the size of a principal building on a lot in comparison to the total lot size. In other words, a floor area ratio of 15 percent mandates that the size of the principal building can take up no more than 15 percent of the lot it sits on.
A highway commercial shopping district was created with a strict 15 percent floor area ratio maximum and 100-foot buffers to residential neighborhoods. According to Mercantante, there are five primary "shopping center" properties along the Routes 35 and 36 corridors affected by the creation of the new zone.
One business owner, Joseph Becker, who owns a 32-tract of vacant land on Route 35 and Taylor Lane (across from Target) complained that the ordinance presents prejudice against certain landowners.
He claimed that the surrounding similar commercial properties would not have to be held to the parameters of the ordinance since they had already been built on and called the measure unfair.
"Properties with like circumstances should be treated alike," Becker said. He went on to contend that the township needs ratables to thrive on. Mercantante responded to Becker’s complaints, saying that his property does not even apply to these considerations.
"It’s surrounded by constrained wetlands and is vacant," Mercantante said. "The Target and ShopRite Mr. Becker is referring to as comparable development areas were developed before. The redevelopment of the site was done under the same square footage."
Becker said that he echoed the sentiments of landowners and businessmen throughout the township.
To Becker’s final-hour criticisms, Peters replied that the ordinance had to be adopted in response to growing traffic intensity concerns. "We had a traffic study done which suggested an ordinance of this sort as a first step to remedy or slow down an impending disastrous traffic situation. We had been hearing from people that traffic on [Route] 35 was just getting worse, and worse, and worse and worse."
Peters said towns are not supposed to be powerless in slowing down development. Towns change over time, she added, and as they do so, there is a need to go back and take a look at the zoning that affects them and to create more cohesive, sensible development patterns. Becker disagreed, as did a couple of other objectors to the ordinance.
Laurence Rothstein, an attorney for Home Depot and Century 21 department store, said that Middletown was in violation of the state’s municipal land use law because it did not notify all affected property owners by certified mail of the proposed zone changes.
Mercantante maintained that such notice, typically given to all people within 200 feet of such a change, was not necessary in this case, since the zoning changes were based on re-examination of the master plans of 1996 and 2000.
"Re-examination reports make no mention of the creation of new zones," said Rothstein. "Notice via certified mail should have gone out to property owners in accordance with municipal land use law."
Mercantante, however, insisted that such notice was not required in this case. With respect to doubts expressed that the town cannot restrict "big box" stores from being built, Mercantante said "such a store is a very different animal from typical commercial use."
Peters reiterated the fact that a similar ordinance was enacted in Manalapan and won the sanctioning of the Supreme Court.
Others claimed that Middletown would end up in litigation because of the ordinance, but the Township Committee unanimously passed the ordinance anyway.
"It’s actually a positive change," said Mercantante. "There is a new law that came into effect about five or six years ago. It says that you do have to notice for zone changes where you’re changing boundaries of a zone. You don’t have to when the change is a result of the master plan re-examination report. In this case, that’s what has happened.
"The issue has also been fully addressed in public hearings. Any critics have had ample opportunity to comment. The public hearing meetings are always noticed in the legal ads in local newspapers," he concluded."
When the committee first presented an ordinance to allay grim predictions of future traffic gridlock on the routes 35 and 36 corridors, many small business owners with property zoned B-2 (minimum 20,000 square-foot) and B-3 (minimum 3-acre) objected.
The basis of their fears was that the draft ordinance called for a reduction of the floor area ratio in those zones and increased buffers to residential neighborhoods.
The complaint was that under the ordinance’s stricter parameters, reducing floor area ratio, future expansions or rebuilding in case of disaster would be prohibited.
The ordinance, in its original form, also affected the ability of big-box business owners to build warehouse-type businesses (with forklifts and outside facilities) in the township.
The committee revisited the ordinance and came back with revisions that underwent public hearings. The revised ordinance met with the approval of small business owners who originally rejected it.