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January 5, 2007

Court date set in Meirs Road warehouse case

BY JENNIFER KOHLHEPP
Staff Writer

UPPER FREEHOLD - A group of township residents against warehouse development on Meirs Road expects to have its day in court regarding the issue later this month.

According to Phil Sinicropi, spokesperson for Meirs Road Residents Against Warehousing, which is the group that filed suit against the Upper Freehold Planning Board and Freehold's JAC Raw Land Co., Superior Court Judge Alexander D. Lehrer will hear the case at 1:30 p.m. on Jan. 12 at the Monmouth County Courthouse in Freehold.

The group of residents filed the appeal in June asking for a reversal of the Planning Board's decision that authorized the construction of an 18,698-square-foot warehouse on the corner of Meirs Road and Route 537. The 2.4-acre property is located in the highway development (HD) zone. The property has historically been undeveloped, with the exception of a one-month use for Christmas tree sales.

The Planning Board conducted hearings on the application March 9 and approved the application on April 25.

According to the group's attorney, Stuart Lieberman, of Princeton's Lieberman & Blecher, the public was not treated fairly when the applicant submitted a revised Environmental Impact Study (EIS) for the project the night the board voted in favor of the plan.

Sinicropi had urged the Planning Board not to vote on the matter during the April 25 hearing so that the public could have a professional evaluate the revised environmental impact report.

Had the board noticed the public that an amended EIS would be considered on April 25, Sinicropi said he could have retained an expert to review it and challenge it before the board.

The group's lawsuit alleges a number of deficiencies throughout the approval process of the project, but states as the "most egregious" the failure to comply with the township's EIS and stormwater ordinances.

"At least nine requirements of the [EIS] ordinance were either completely ignored or drafted so ambiguously and superficially that it does not provide the data and analysis required," the suit alleges.

For instance, the suit said the applicant determined that there is no habitat suitable for endangered or threatened species on the proposed site, when the state Department of Environmental Protection (DEP) had determined that the proposed site does consist of habitat suitable for three endangered/threatened species.

The suit also takes issue with the EIS being drafted by a planner and not an environmental scientist.

Lastly, the suit alleges that the applicant failed to comply with a number of provisions of the township's stormwater control ordinance in that it routes all discharge to a single point on the property and does not provide off-site stability calculations or sufficient settling of pollutants in the detention basin among other infractions.

Sinicropi said he personally has a major issue with the likelihood that all the newly created, nonpervious surface would direct stormwater runoff into his own yard and his neighbor's backyard.

The Planning Board's trial brief regarding the residents' allegations was prepared by the Malsbury & Armenante law firm in Allentown. The brief states that the board had the right under the Municipal Land Use Law to waive submission of various information by JAC Raw Land Co.

"The applicant clearly provided sufficient proof that the development will not cause reasonably avoidable environmental impact," the board's brief contends.

The board also contends that it gave the public and objectors ample opportunity to testify, cross-examine witnesses and otherwise present evidence, which the objectors did.

The board further contends that the applicant's experts were qualified and that there is no evidence of endangered species on the site. In addition, it has taken a position that the stormwater management plan complies with applicable standards.

"While the applicant's plans do comply with the stormwater control ordinance, the applicant is not subject to those standards because they were not effective at the time the application was deemed complete or heard by the board," the board's brief states.

According to the board's brief, the applicant's proposed detention basin would collect runoff from the applicant's site and runoff from Meirs Road and County Route (CR) 537, which currently runs to adjoining properties such as Sinicropi's.

The board and JAC Raw Land Co. are calling for the court to dismiss the plaintiff's charges with prejudice.

In response to the residents' allegations, Michelle Tullio, attorney for the JAC Raw Land Co., argues in a trial brief dated Jan. 2 that the court should find that the plaintiff's arguments have no merit and affirm the board's decision.

"This court may only reverse a board's decision when that decision is shown to be arbitrary, capricious and unreasonable," Tullio's brief states. "The burden of proof is on the plaintiff to provide the evidence that the decision should be reversed. Here, the plaintiff has failed to provide such evidence."

Tullio's brief argues that the plaintiff did not question the applicant's witnesses during the March 9 and April 25 hearings. The brief also contends that the Planning Board's acceptance and reliance upon the applicant's EIS are proper and not a basis to reverse the board's decision. Tullio argues as well that the plaintiff merely claims that the applicant's experts were unqualified without any substantiation.

The brief also contends that the board did submit the EIS to the board properly and gave residents enough time to comment on it and/or present expert witnesses to challenge it.

It further argues that the applicant's project did not violate the township's stormwater ordinance.
"While the applicant's drainage system is designed to concentrate drainage into one area, this method was found by the applicant's and the township's engineers to be the most effective method for this particular project," Tullio wrote in the brief.

In conclusion, Tullio's brief states, "The bottom line is that the plaintiff simply does not like the board's decision or its power to conduct the meetings in a way that the board's members see fit. This is not grounds for reversing the board's decision. Thus, this court has no option but to affirm the board's approval of the applicant's major site plan."