Middletown appealing reversal
of town center zoning amendment
VERONICA YANKOWSKI Preparing Sunday for possible snow in the weather forecast, John Politis, owner of the Red Oak Diner in Hazlet, stocks up on snow shovels and salt at the Home Depot in Hazlet.
MIDDLETOWN — A judge’s recent ruling, nullifying a vote to scale down the buildout capacity of one zone, has caused the township to see an appeal as the most favorable resolution.
That appeal has not yet been formally filed. According to Township Attorney Bernard Reilly, while state Superior Court Judge Florence Peskoe’s decision/court order was filed, "the appeal can’t be filed until the order is signed, and it hasn’t yet been signed because after the judge filed the order, she went on hiatus. She is a part-time judge."
Reilly hopes to expedite the appeals process and get a ruling in three to four months.
Peskoe ruled on Dec. 15 that an ordinance — passed with a 3-to-1 vote — to downscale allowable building capacity and to rework uses in the township’s only planned development zone was invalid.
The dissenting vote for the ordinance was cast by Township Committeeman Raymond O’Grady. Then Deputy Mayor Rick Brodsky recused himself from the vote because his law firm has represented one of the developers of the zone.
Peskoe said three votes weren’t enough to pass an ordinance in a case involving a major land use issue, and Brodsky’s was an insufficient reason for recusal.
Peskoe contended that Brodsky cannot resign for a few minutes. If he is not voting, he is still to be counted as a member of the committee and part of a "super majority." That decision was lauded by developer Mountain Hill’s attorney, Gary Fox of Fox and Gemma, Ocean. Mountain Hill wants to create a 132-acre, mixed-use, planned development zone to develop the existing 80-some acres that comprise an existing planned development zone it owns land within. That application is now in front of the Zoning Board.
Fox said that Judge Peskoe’s ruling was the green light his client was waiting for to proceed in applying for the necessary variance to not only build out the designated capacity of the 80-acre zone, but also to expand the zone into land designated light industrial. Whether Peskoe’s decision is appealed or not, Fox maintains the application is now complete.
The township will still proceed with an appeal to Peskoe’s decision with the intent of keeping development at the Route 35 site (from Kings Highway East to Kanes Lane).
"Our attorney thinks our chances are good on appeal," said former Mayor Joan Smith last week. "He has done case research and found cases substantiate our belief that three votes are sufficient as a super majority if one of the five members has recused himself.
"What the developer has proposed is still just too big," she continued. "Our intent with the ordinance was to keep development reasonable in the township for good quality of life, and that hasn’t changed for most of us. The developer is still seeking a variance, and despite changes they say they’ve made according to the public’s input, I’m not so sure it’s (the town center plan) any smaller or more amenable to most."
Mountain Hill’s development proposal comprises 1.4 million square feet at a projected value of $150 million.
Reilly reiterated Smith’s confidence in the appeal process.
"The chances of the judge’s ruling being overturned on appeal are good. There is a reasonable probability of success," he said Sunday.
"The municipal land-use statute that supposedly mandates this super majority rule is ambiguous and could be read either way," Reilly added. "For instance, with respect to municipal land-use law, there are eight separate places in which there are provisions concerning how many people have to vote on ordinances like this one. They specify in specific instances that a certain percentage of full authorized membership (of a governing body) must count in a vote to pass an ordinance. In this particular part of the statute (concerning land-use issues such as the downscaling of a zone like the planned development), it doesn’t say that."
Reilly went on to say that case law he drew upon for his legal brief was based on decisions in other cases that support his claim.
This, he said, would be a precedent-setting case that he believes is worthy of a healthy challenge.
"We have to really question what they mean when they say all members," Reilly said. "It has to mean all members capable of voting. My feeling is that when the statute said all members, it did mean all members capable of voting. It doesn’t specify otherwise and is up for fair interpretation. The statute has been around since zoning was established in the 1930s or ’40s. It’s time it was seriously looked at again. Ultimately, a panel of appellate court judges will have to examine it. I’m confident they’ll assess the issue wisely," he concluded.