The Freehold Borough Land Use Board has affirmed a decision made by zoning officer Hank Stryker III to issue a permit to a businessman who wants to reopen a gas station at the corner of East Main and Spring streets, Freehold Borough.
On June 13 the board voted to direct its attorney, Francis Accisano, to prepare a resolution denying an appeal that was filed by resident Lisa Freira, which took issue with Stryker’s decision to issue a permit that will allow the dormant gas station to be reopened.
The resolution will be memorialized at a future meeting of the board.
Voting in favor of the resolution were board members Kevin Lewis, William Barricelli, Adam Reich, Robert Oaks, Garry Jackson and Chairman Kevin Mulligan. Voting no on the resolution were Councilman George Schnurr, who sits on the board, Marjorie Goetz and Danielle Sims.
Freira had objected to Stryker’s decision to grant property owner Rakesh Kumar a permit to reopen the gas station he purchased in 2004.
Stryker’s decision meant Kumar did not have to obtain the land use board’s approval to reopen the pre-existing non-conforming use. The property had been used as a gas station beginning in 1923 and continued operating until about 2000.
Attorney Mark Williams, who represented Kumar, argued that Kumar never had any intention of abandoning the gas station use.
Kumar offered a history of events that occurred since he purchased the property in 2004, which included applications to the land use board for a retail/office building which was initially denied, then approved in 2006, and for a 7-Eleven convenience store in 2012, which was denied.
Kumar said when he bought the property he intended to use it as a gas station.
Board members asked Kumar why he did not reopen the gas station after the retail/ office application was denied or at any other time since he purchased the property.
Kumar said he did not know why he had not reopened the gas station.
In his summation, Williams said any confusion in the testimony was about issues that were not pertinent at this time.
“The important thing is that the property has been a gas station since 1923, operated by Standard Oil, then by Esso and by Exxon prior to any borough zoning ordinances,” Williams said. “Although the gas station had not been in use for over 10 years, it did not negate its use.”
Williams said Kumar maintained that the property was a non-conforming permitted use and never relinquished that use.
“In order to abandon a use you have to give it up,” the attorney said, adding that at no time did Kumar do that. “You need to show intention to abandon by an overt act or a failure to act.”
Lewis said he did not believe Kumar ever intended to abandon the gas station.
Barricelli said Kumar never gave up his right to use the property as a gas station.
Schnurr said he believed the gas station was abandoned. He said Stryker was not privy to the hours of testimony board members heard when Kumar proposed the other uses on the property and that what Stryker did in issuing the permit for the reopening of the gas station was based on the facts before him and not “what we are doing here now.”
Goetz said she could not agree with Stryker’s decision to grant Kumar the permit to reopen the gas station. She said the testimony had “so many shades of gray.”
Sims said Kumar never tried to reopen the gas station. She added, “Mr. Stryker may not have had all the facts, but I don’t think he was proper in issuing the permit.”
Reich said Kumar did not abandon the gas station and he said Stryker made a correct determination of a pre-existing nonconforming use.
Oaks agreed with Stryker’s decision to issue the permit and said Kumar’s correspondence on the applications for a retail/ office building and for a 7-Eleven confirmed that he did not intend to abandon the gas station use.
Jackson said Stryker did not make an error and that there was no physical action taken to intend abandonment.
Mulligan said he did not think Kumar intended to abandon the gas station.
“At no point did I see him intend to abandon the gas station. He embarked on different plans, but nothing came to fruition and he kept his rights to the gas station and at no point did he ever appear to relinquish those rights,” Mulligan said.