BY CLARE MARIE CELANO
Staff Writer
FREEHOLD — The Zoning Board of Adjustment, Mayor Michael Wilson and members of the Borough Council have been named as defendants in a lawsuit filed by Bay Dock Holdings LLC, of Lavalette.
Attorney Robert Munoz of Freehold Township stated in the lawsuit that was filed in March that on July 16, 2004, Bay Dock Holdings filed an application seeking a use variance to construct 16 townhouses on Orchard Street. The property is zoned for commercial manufacturing and does not permit a residential use.
The applicant’s plan called for the construction of primarily three-bedroom townhouses of approximately 1,800 square feet each with attached garages.
On Aug. 24, Oct. 26 and Nov. 9, 2004, the zoning board held public hearings on the application, according to the suit. On Nov. 9, board members William Madigan, Rev. Andre McGuire, John Newman and Dr. Eileen McGough voted in favor of the application. Board members Kevin Mulligan and Adele Ehlin voted against the project. The application required five affirmative votes for approval and received four.
Roger Passarella of Bay Dock Holdings told zoning board members on Aug. 24 that the development would “replace a vacant, unsightly parcel that has often been the source of residents’ complaints and concerns.”
Engineers representing Bay Dock Holdings said debris and dead trees would be cleared away during construction and that wetlands on the parcel would be preserved and provide a park-like environment for prospective buyers of the townhouses.
The lawsuit claims the board’s action to deny the applicant a use variance was “arbitrary, capricious and unreasonable in light of the uncontroverted testimony presented on behalf of the plaintiff.”
Bay Dock Holdings is demanding judgment in state Superior Court reversing the board’s vote and granting a use variance, remanding the application for site plan approval, and payment of attorney fees and costs of the lawsuit.
According to the lawsuit, the borough’s master plan re-examination report dated Feb. 12, 2003, recommends that the subject site be rezoned from commercial manufacturing to a recreational district which permits only not-for-profit recreation uses.
The lawsuit claims that as a result of the commercial manufacturing zoning, the denial of the Bay Dock Holdings application and the proposed recreational zone for the subject property, the borough has zoned the property into “inutility.” The lawsuit claims the zoning of the property for commercial manufacturing is “not consistent with the available infrastructure, economic market demand as well as surrounding properties.”
A response from Borough Attorney Kerry Higgins states that the borough denies that the property has been zoned into “inutility” and that the subject uses surrounding the property are residential in nature.
The borough states that Bay Dock Holdings is entitled to reasonable use of the property, but denies the claim that the firm has been denied that reasonable use. It denies the applicant’s claim that the zoning of the property for commercial manufacturing is not consistent with available infrastructure, economic market demand and surrounding properties and that the property cannot be developed because it is, in the applicant’s words, “undersized and irregular.”
A response from Higgins and zoning board attorney Vincent Halleran denies that the board’s vote was arbitrary, capricious and unreasonable.
Borough Administrator Joseph Bellina said the two sides are in the process of setting up a meeting in order to work on finding a possible settlement to the litigation.