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Friday, May 11, 2007

Hamilton residents sue to halt strip mall

BY LINDA STEIN

HAMILTON -- The group Save Hamilton Open Space and 46 residents have filed a lawsuit to block a strip shopping center planned for Route 33.

In the lawsuit, filed last week in Superior Court, SHOS said there was a deed restriction on the property that prevents anything except residential housing from being built on the site.

A 1951 deed that was conveyed to Barton F. and Bernice Francis states "the said lot shall never be used for any purposes other than for residence purposes," the lawsuit said.

James J. Maguire, who was the executor for Barton Francis, sold the land to Jon/Gul Enterprises in 1995. The 1995 deed did not include the restriction that was a part of the 1951 deed.

The 1951 deed said "no store, shop, saloon, bakery, apartment house or other business enterprise shall be conducted or erected," the suit said.

"Clearly this covenant was in tended to preserve the residential character of the neighborhood," the suit said. "It is clear the appli cant is violating the covenant and must withdraw its application to develop the property commercially."

Developers Jon/Gul Enterprises and Square Properties LLC, plan to build 24,000-square feet of retail space and a 7,500-square-foot building for a credit union on the property at Route 33 and Bisbee Avenue, according to township records.

Thomas J. Orban, a Hamilton real estate agent who represents the developers, said the premise of the suit is wrong.

"We have researched it legally and through a title company and don't share their opinion," Orban said. "Anybody can sue anybody at any time."

Stuart Lieberman, the lawyer for the plaintiffs, said the deed restriction is still in force and the language is very clear.

"It was clear the grantor wanted to have it used for residential property," Lieberman said. "Unless there is a public policy reason there is no reason to say (the restriction is) not in effect."

Rocky Swingle, president of SHOS, said residents in the area are very concerned that the proposed development would bring increased flooding. As it is, they had to pump their basements for days after the recent nor'easter, he said.

The small, five-acre parcel is also home of the last remaining stand of native hardwood trees in the area, he said. Some of the trees are 70 feet tall, Swingle said.

"The flooding has really been a problematic issue," Swingle said. "It's a development we don't need that does more harm than good."

Meanwhile, the Hamilton planning board, which was set to hear testimony about the plan last night, is expected to rule on the proposal by June 30.

Linda Stein may be reached at lstein@njtimes.com or (609) 989-6437.