Court denies strip mall’s appeal

Construction of a proposed shopping center on Rt. 27 at Finnegan’s Lane blocked.

By: Paul Koepp
   Plans for a pharmacy and strip mall at the intersection of Route 27 and Finnegans Lane could be dead.
   A three-judge panel of the Appellate Division of state Superior Court, in Trenton, reversed a February 2006 trial court ruling and upheld a March 2005 decision by the Township Council to rezone the 12.7-acre lot, effectively blocking the complex’s construction.
   The developer, Riya Finnegans LLC, of Metuchen, sued the Township Council and the Planning Board soon after the rezoning. The company’s site plan application, filed in December 2003 and later modified to downsize the proposal, was rejected by the Planning Board in March of this year.
   Anthony Campisano, of the New Brunswick law firm Bucca and Campisano, who argued the case for the township, said Tuesday the appellate panel’s decision is a "wonderful win" for the residents of nearby Brunswick Acres. Many of them have opposed the proposal from the start, saying the development was not needed, was too big for the area, and would add to existing traffic problems.
   Mr. Campisano said the decision also provided a measure of validation to the Township Council that the rezoning was the right thing to do. Other towns in the state could find the ruling significant because it reaffirms the township’s legislative powers in the face of developers, he said.
   "It reinforces the authority they’re supposed to have by law," he said. "The township realized that you can’t stop development, but you can try to measure and control it."
   Henry Kent Smith, an attorney for Riya Finnegans, said Tuesday he was "very disappointed" in the panel’s decision, which he said did not properly weigh the facts and state laws. The company will petition to file an appeal with the state Supreme Court, he said, although he did not specify what the basis of an appeal would be.
   The site plan application rejected by the Planning Board in March included a 15,564-square-foot Rite Aid pharmacy, a 19,800-square-foot strip mall, and a 10,400-square-foot office building.
   Superior Court Judge James Hurley ruled in February 2006 that the rezoning ordinance, which changed the site from Neighborhood Commercial (C-1) to Office Park, was "arbitrary and capricious" because the Township Council did not rely on expert testimony and because the ordinance constituted "inverse spot zoning," unfairly singling out the Rita Finnegans parcel.
   The C-1 zone permits retail and office uses, while the OP zone allows office construction, but limits retail uses.
   However, the appeals panel decided that the trial court used "an incorrect standard of review" by requiring expert testimony and ignoring residents’ wishes.
   "In adopting this rezoning ordinance, the Township Council was performing a legislative function," stated the ruling by appeals court judges Mary Catherine Cuff, Michael Winkelstein, and Jose Fuentes. "As such, the Township Council was entitled to rely on the view expressed by the Township residents."
   The panel also ruled that the ordinance did not constitute spot zoning because "the legislation’s principal purpose furthered a comprehensive zoning scheme." The OP district would allow the "less intense development" desired by the Township Council and by residents, the panel ruled.
   In reference to the spot zoning claim, the judges said the trial court should have considered the large size of the development proposed by Riya Finnegans, which made it unsuited for the "village character" of the C-1 zone and set it apart from other C-1 sites.
   The average lot size of a C-1 district is between 10,000 and 15,000 square feet, while the buildings in the proposed Riya Finnegans complex would have totaled about 45,000 square feet.