MIDDLETOWN — Iselin-based developer American Properties has sued the township of Middletown and the township Planning Board over the unanimous denial of the company’s plan to build 245 town homes on a 31-acre site.
Citing “arbitrary, capricious or unreasonable” regulations and rulings by both bodies, American Properties is asking a state Superior Court judge to overturn the denial of its application and strike down a local ordinance cited in the decision.
The developer is also seeking a ruling on whether Taylor Lane is a public or private roadway, which could require the township to forcibly acquire any private ownership rights to the road that bisects the development site.
Attorneys for the township and the Planning Board said no court hearings had taken place as of May 5.
Ronald Shimanowitz, the attorney for the American Properties application and the appeal, did not return a call seeking comment.
In the appeal, filed on Feb. 28, the developer states that the proposed development of 196 market-rate town homes and 49 affordable housing units fully complies with the township’s zoning for the vacant site.
The Planning Board’s unanimous resolution of denial, which came after 11 lengthy Planning Board hearings spanning all of 2013, stated that Taylor Lane is a “collector road” according to local and state regulations.
As a result, the board said the proposed development must be set back 50 feet from Taylor Lane, a two-lane road that runs south from Route 35 past a residential community.
“The applicant’s plan is too crowded, too tight to a busy road,” read the resolution of denial. “Locating homes within 25 feet of a busy collector road is just not good planning. “
Professionals for American Properties testified that Taylor Lane is actually a local road that would require a setback of only 10 feet. The application called for a 25-foot setback.
In the suit, American Properties officials say the Planning Board did not decide that Taylor Lane was a collector road until the 11th and final hearing for the application, and did not mention the need for a variance prior to that night.
The board’s determination was also partly based on a Middletown road ordinance that is “arbitrary, capricious, unreasonable and ambiguous” and needs to be voided, the complaint alleges.
The ordinance, cited in the board’s denial, lays out specific criteria for a collector road, including the number of vehicles it carries, the number of lots it provides access to and whether it is “utilized by traffic other than residential in nature.”
However, the board also recognized that the road ordinance “is not crystal clear,” referring at points to the township master plan, which does not designate Taylor Lane as either a local or collector road.
American Properties is asking the court to void the ordinance and officially declare Taylor Lane a local road.
The developer also alleges that the Planning Board’s denial violated state affordable housing requirements, as the property in question is part of Middletown’s affordable housing plan and was rezoned to accommodate multifamily housing in 2009.
American Properties is seeking bulk variance approval for the application and a remand order requiring the Planning Board to hear testimony on the setback variance, along with reimbursement for court and attorney fees.
The developer is also seeking a ruling on whether Taylor Lane is a private or public road, an issue raised during the hearings by residents who said they have title to certain portions.
Citing Middletown’s “long-standing policy” of plowing, paving and maintaining Taylor Lane as a public road, the developer seeks an official declaration from the court and a requirement for the township to extinguish any existing private rights through eminent domain.
The Planning Board refused to decide the issue during the hearings, saying it does not have the jurisdiction to do so.
In late April, all parties agreed to allow Ron Gasiorowski, the attorney who represented resident Brian Johnson in opposition to the application, to intervene in the appeal.
In December, the Planning Board approved a settlement agreement with developer Four Ponds Center Associates on a similar application for the 65-acre former Avaya site in Lincroft.
The application, which was successfully opposed by Gasiorowski and dozens of nearby residents, originally called for 274 town homes and 68 affordable housing units on a property also included in Middletown’s affordable housing plan.
Four Ponds appealed the Planning Board’s denial, and a state Superior Court judge found that some of the board’s reasons were not adequately supported by testimony, and that it had failed to consider some testimony presented by the applicant.
Both sides later reached a settlement, allowing Four Ponds to submit a new application for 228 total units and eliminating the need for an affordable housing requirement.
Planning Board attorney James Gorman said Four Ponds has not yet submitted that application.