By dave benjamin
Staff Writer
MANALAPAN — Score one for the Planning Board.
State Superior Court Judge Lawrence M. Lawson, sitting in Freehold, has affirmed the decision of the board in a complaint that centered around the development of homes in a project known as Autumn Estates.
On July 9, 2001, Dolores Palazzo, of Manalapan Woods Drive, filed the complaint regarding the developer of Autumn Estates, Atlas JV LLC.
After more than a year in the judicial hopper, Lawson dismissed the case in a recent decision.
"I expected that Judge Lawson would uphold the board’s decision," said James Kinneally, the attorney who represents the Planning Board.
The complaint filed by Palazzo named the Planning Board, which voted 4-0 on May 24, 2001 to permit Atlas JV to construct Autumn Estates, a development with five homes and one detention basin, on Lamb Lane in the southern end of Manalapan.
Voting yes were board members Howard Benkov, Stephen Pine, Drew Shapiro and Susan Heckler. Absent from the memorialization vote were Ron Wishart and Herbert Lazar. Ineligible to vote were Beth Ward, Rich Hogan, Mary Cozzolino, Thomas Palozzi-Haynes and Michael Palazzo, the husband of Dolores Palazzo, who filed the complaint.
The original application for Autumn Estates proposed a six-lot subdivision on a 12-acre tract on Lamb Lane. In November 2000, the applicant proposed a change to five lots to be used for residential purposes and one lot to be used as a detention basin. The five lots would vary in size with the largest one being 2.3 acres.
The complaint filed by Dolores Palazzo claimed there were three aspects of the board’s decision to allow the project to proceed that were arbitrary, capricious and unreasonable. The complaint charged that Atlas changed its application, requiring a variance, which was approved without public notice or hearing.
It also claimed that Autumn Estates would encroach upon the habitat of the Helonias bullata, commonly known as the swamp pink plant. Additionally, the complaint charged that a member of the board who voted in favor of the resolution refused to recuse herself from the vote, "not withstanding: a clearly demonstrated prejudice and personal animosity toward the objectors."
According to the summary of the decision rendered by Lawson, the court found that the board’s decision to approve the Autumn Estates application was neither arbitrary, capricious or unreasonable.
The judge noted that the applicant reserved the right to request variance relief in the legal notice circulated to property owners within 200 feet of the subject property.
Additionally, the court found that Palazzo failed to meet the burden of proof with regard to her claim that the board member should have recused herself and that her prejudice tainted the board’s ultimate decision.
He said the objectors failed to prove that the application had been prejudged.
Regarding the swamp pink plant, the judge noted that it was within the board’s discretion to weigh the comments in reports and the testimony of witnesses and make a decision with respect to the application.
"The court finds nothing in that decision arbitrary, capricious or unreasonable to warrant reversal," Lawson said in affirming the board’s decision.
"We’re glad that it has come to a judgment and it is behind us," said attorney Kenneth Pape, who represented Atlas JV LLC and the Autumn Estates development. "The suit really was between Dolores Palazzo and the Manalapan Planning Board. It was really their battle."
Pape explained that the very carefully worded complaint actually noted three causes of action against the board.
"Mr. Kinneally did a terrific job," Pape said.
According to Pape, Lawson took great pain to evaluate and measure everything the objectors said.
Referring to the summary written by Lawson, Pape said, "It’s pages and pages long. His analysis was textbook. It concludes that the Planning Board handled the matter properly."
Pape said the Autumn Estates property is under contract of sale to a developer who intends to build on it promptly.