Marlboro council will not
appeal zoning board ruling
By jeanette M. eng
Staff Writer
MARLBORO — The Township Council will not challenge a decision made by the zoning board to grant a variance that will allow a developer to construct 35 homes on a commercial piece of property on Tennent Road.
At the start of the council’s March 24 meeting, Councilwoman Mary Singer informed the public that a closed session to be held later that evening would include discussion about possible litigation against the zoning board in response to its approval of a variance for the developer of Tennent Estates.
"Three of my colleagues here ran on a platform of stopping overdevelopment and I hope that this evening you are prepared to do the right thing," Singer said.
Singer was referring to the zoning board’s Jan. 2. approval of Tennent Estates, a development of 35 single-family homes to be built on the north side of Tennent Road, west of Wooleytown and Brown roads. The applicant was local builder Dan Werbler.
The 20.2-acre parcel is zoned C-2 for neighborhood commercial use. The applicant was granted a use variance to permit a subdivision to be built in accordance with Residential Affordable Housing (R10-AH) zoning guidelines.
The application was one that provoked the opinions and active involvement of residents and council members. They questioned the appropriateness of such a use variance, one which some referred to as "akin to a rezone."
Only the council may rezone property in Marlboro. The zoning board has the authority to grant variances from municipal zoning regulations.
Since January, council members had discussed possible litigation against the zoning board in regard to the Tennent Estates approval and the possible reinstatement of an ordinance that would establish the right of appeal to the council concerning certain land use approvals.
According to the zoning board office, an application can be taken to court up to 45 days after the decision is memorialized by the board. The Tennent Estates variance was memorialized on Feb. 12 and March 31 marked the deadline for any legal action.
As of March 24, Singer said she still believed that litigation was a route worth pursuing. Not everyone else on the council felt the same way.
Since discussion of litigation began, attorney Fred Rafetto had been reviewing transcripts, testimony and tapes to assess the feasibility of winning such a case. In closed session on March 24, interim township attorney Jonathan Williams told the council that the chances of winning the Tennent Estates case against the zoning board would be 50 percent, Singer said.
According to Singer, Williams’ reasons included the fact that testimony which would go before a judge to render a decision would show no residents spoke out against the Tennent Estates application during the zoning board hearings on the application.In addition, the burden would fall on the township to prove, based on the testimony, that the zoning board’s decision was a poor decision.
Although the council had supported research into possible litigation, there was no consensus to move ahead with litigation.
"We have to go by the advice of our attorneys," Singer said, noting that it is difficult for council members to review the application’s transcripts.
It is also a tough time for the council as the governing body is already in the midst of litigation against the Freehold Regional High School District and several affordable housing lawsuits.
"This [litigation against the zoning board] may not be a wise allocation of money right now," Singer said. "Pursuing a lawsuit might also be considered frivolous in the midst of the publicity that Marlboro has received" about its municipal government in recent months.
In terms of an ordinance to make decisions by the zoning board reviewable by the council, council members also did not want to pursue that course of action.