Almost all of project’s land lies in township.
By: Matt Chiappardi
HIGHTSTOWN The Planning Board is appealing a court ruling that recently reversed its rejection of a site plan for the construction of warehouses and offices near Airport Road and Route 33.
The 26-acre tract of land in question lies almost entirely in East Windsor, with only one-tenth of an acre spilling over to the Hightstown side.
The board voted 7-1 Monday to file the appeal, with the lone dissenter being Borough Council President Walter Sikorski.
"I didn’t see any reason to pursue this any further because of the cost it would involve," Mr. Sikorski said Tuesday.
"It seems like (the judge) made a reasonable decision," he added.
That decision was delivered July 20 by Superior Court Judge Linda R. Feinberg, who called the Planning Board’s denial "arbitrary and capricious."
East Windsor Hi-Tech, the site’s potential developer, sued the Planning Board after it refused last year to grant the company an approval based on the potential truck traffic the property could generate.
The Planning Board’s counterpart in East Windsor approved the company’s site plan in December 2005 for three buildings comprising 206,481 square feet of warehouse and office space, with nothing planned on the section of wooded land that lies in the borough.
During Hi-Tech’s hearing in Hightstown in September 2006, the board requested a revised plan that would direct truck traffic away from the borough’s center. That was something Hi-Tech was not willing to do "peacefully," the company’s attorney Michael Magee said last year.
An altered plan would have compelled Hi-Tech to return to the Planning Board in East Windsor, which had reviewed the project over 14 months before giving its approval. Property owner Lawrence Rappaport wanted no part of that idea.
"I’d rather take a no vote and go to court," he had said.
Mr. Rappaport made good on that threat in December, and last month won a battle in what has become, for him, a three-year war to get his property developed.
During the court hearing, the Planning Board argued that the borough’s "town center would be eviscerated by the traffic created by the proposed construction."
Judge Feinberg pointed out in her opinion that the land in question is zoned for industrial use. Therefore, she said, "the proposed development remains a permitted use in Hightstown, and the Borough’s designation as a ‘town center’ cannot change that fact. There is no question that the Borough could have rezoned the subject property to foreclose the possibility of added traffic in the ‘town center.’ "
The Planning Board this week began reviewing a potential zoning change that would include that 1/10th acre.
Ultimately, Judge Feinberg based her ruling for Hi-Tech on a number of cases, including the Levin v. Hamilton Township Planning Board state Supreme Court decision that disallows planning boards to reject site plans based on the impact from off-site traffic.
The board also argued that Hi-Tech’s application was incomplete because it lacked approvals from the state Departments of Transportation and Environmental Protection. Judge Feinberg said the board’s position is not "persuasive" since the "deficiency is not likely to impact the public health and welfare."
She ordered the decision of the board reversed and granted Hi-Tech the approval it sought.
Mr. Rappaport did not return calls seeking comment on the Planning Board’s appeal. And board Chairman Steve Misiura declined to comment on the case Monday.

