Plan for more retail space along Sweetmans hits snag

One lot in combined application has unforeseen restriction


UPPER FREEHOLD – A 20-year-old error may cause problems for the developer of a retail subdivision off Sweetmans Lane.

On advice from Zoning Board Attorney Gregory Vella, the board did not hear a combined application for 353 Sweetmans Lane LLC and D. Morgan Tracey at its Sept. 26 meeting.

The applicant had been seeking preliminary site plan approval to construct a two-story, 3,818-square-foot retail building on a lot just under 2 acres with an existing 6,750-square-foot retail building. The existing building is a former schoolhouse that currently houses Roy’s Deli, a childcare facility and a Realtor.

In the combined application, the applicant also sought preliminary site plan approval to construct a 9,600-square-foot retail building and 1,098 square feet of office space, as well as a 2,056-square-foot retail building with an adjoining 2,016- square-foot bank on an adjacent 4.3 acres. The lots are 2.01, 2.20, and 7 on the township tax map.

The applicant’s attorney, Kenneth Pape, said the application is for four separate buildings on two lots (Lot 2.01 and Lot 2.20) in the neighborhood commercial zone. He said all the proposed uses are permitted in that zone.

Pape said his client wishes to use Lot 7 for a stormwater management basin. That lot is in the township’s rural preservation (RU-P) zone, he said. His client needs a variance for the project because the basin for the development would be in another zone, Pape said.

Pape told the board that an application pertaining to Lot 7 came before the board in 1987, when the Vrabel family owned the property. At that time, according to Pape, members of the Vrabel family said the lot should have agricultural use. Pape said that when a larger piece of property was subdivided to create the lot, a resolution stated that the deed for the lot should have a restrictive covenant to not allow anything but agricultural use of the site.

However, Pape said the deed filed with the county does not have the restrictive covenant. He said he is unclear as to whether there actually is a restrictive covenant that would preclude his client from creating a basin on the lot.

Pape said the current owners of the property learned about the problem a few days earlier.

Vella said the 1987 resolution makes the restriction enforceable by the township. He added that members of the Vrabel family came before the Zoning Board in 2004 for a lot-line change.

In July 2004 George Vrabel still farmed Lot 7.01 off Sweetmans Lane. The Vrabel family asked for that lot, which consists of a house and a pair of barns, to increase from 13.6 acres to 37.3 acres. In the subdivision, Vrabel’s brother John’s lot, Lot 7, with three residential dwellings on it, decreased in size from nearly 31 acres to 7 acres. About one-tenth of an acre went to the county for a right of way.

Pape represented the Vrabel family for the lot-line change and prepared the appropriate deeds, according to Vella. Vella said the Zoning Board’s 2004 approval of the lot-line change did not reference the agricultural deed restriction. He said just because the board didn’t reference the restriction does not mean that the restriction goes away.

Vella said the Zoning Board cannot approve a site plan containing a deed restriction. He said Pape will have to try to work something out with the town regarding the deed restriction.

“It’s the Township Committee’s decision on how they will deal with it,” Vella said.

Pape said his client is an innocent party who purchased Lot 7 two years ago. At that time, there was no restrictive covenant in the property’s chain of title, Pape said.