Have a question about a case? Email us here.
By: Cara Latham
UPPER FREEHOLD - Opponents of the proposed warehouse on Meirs Road say the Planning Board should have denied the application at its last hearing, instead of postponing a decision until next month, because the developer has made changes to its application.
They also say those changes still won't prevent their drinking water from being contaminated if the warehouse application is approved.
During its June 26 meeting, the Planning Board held the hearing on the application for Freehold-based developer JAC Raw Land Company LLC, which hopes to build a warehouse on Meirs Road. The proposed warehouse, located in a zoned highway commercial, would be 13,490 square feet, with 750 square feet of office space on the first floor and 4,450 square feet on the second floor. The residents of the neighborhood live either adjacent to the warehouse site or across from it.
During the hearing, the Planning Board heard testimony from both sides, but adjourned the meeting until Aug. 28.
Planning Board Chairman Dick Stern said Monday that board attorneys advised the Planning Board that JAC had every right to make changes to its application.
Township Engineer Glenn Gerken said Monday that it's normal operating procedure for any planning board to postpone a decision on a case when it needs more information to make a decision.
Stuart Lieberman, attorney for Meirs Road Residents Against Warehousing, said last week that JAC had, prior to the hearing, rewritten its Environmental Impact Statement, and changed the method it would use to deal with stormwater runoff, he said.
That EIS was the subject of a lawsuit which landed the application back in the Planning Board's hands in the first place.
The residents had filed suit in Monmouth County Superior Court in December claiming that JAC failed to comply with two township ordinances. First, the residents argued that the EIS was not submitted 10 days prior to the public hearing on the applications, as required by the township.
Second, they claimed that substantive and procedural violations (including failure to comply with township stormwater regulations) occurred throughout the approval process for the preliminary and final site plan evaluation for the warehouse facility.
Superior Court Judge Alexander Lehrer, however, only looked at the EIS claim - that it was not submitted at least 10 days prior to the vote - and remanded the application back to the board in January. He had found issue with the fact that the Planning Board had held two hearings on JAC's application - in March and April of last year.
A vote was taken that same April, when the board approved the application, and a resolution of approval was signed in May of last year. JAC then submitted its EIS documents to the Planning Board in February. Mr. Gerken reviewed both the EIS and the Stormwater Management Report and sent his comments to the Planning Board in April. He found those EIS documents to be acceptable, but mentioned the JAC should consider updating the stormwater management system to conform to current state stormwater requirements, even though the requirements were not explicitly required.
At the time the plans for the warehouse were originally approved by the township, the stormwater ordinance had only applied to residential developments.
Mr. Gerken previously said that the ordinance is in effect now for both residential and commercial sites and if residents had appealed the site plans now, a Superior Court judge could have ruled in their favor. JAC agreed to comply with those stormwater requirements in April.
Mr. Lieberman said last week, however, that he believed JAC's new stormwater methods still didn't meet state law, which it must in order to be approved.
"We would have thought that on that basis, they would have voted and they would've denied the application," he said, referring to the Planning Board. He also said the developer modified its stormwater basin.
"There's a high water table, and you're not allowed to use the kind of basin they're using if there's less than 2 feet separating between the water table and the bottom of the basin," he said.
Michelle Tullio, attorney for JAC, however, said Tuesday that the developer is no longer seeking a design waiver for its basin.
At the next hearing in August, "we're just simply going back to show the board that were complying with the basin, which is having 2 feet of separation versus 1 foot."
Mr. Lieberman also said that JAC had proposed putting its septic system in the state Department of Environmental Protection's well head protection area, where developers must exercise extra protection because of the close proximity of public wells.
"Now, they're trying to move their septic system so that it's not in that area, and maybe make some other adjustments," he said. Meirs Road resident Phil Sinicropi, one of Mr. Lieberman's clients, said last week that even if the developer moves the septic system outside of the well head protection area, the wells, including one that serves a nearby pizzeria, will still become contaminated.
"In our opinion, it is just going to delay the process another 100 feet," he said. "This is a public safety issue. Whether it complies with zoning or not, it's unsafe to the public. Just because it's permissible, it doesn't mean the Planning Board has to approve it. The Planning Board has a responsibility to protect the public."
Mr. Sinicropi also said he took issue with a question raised by Mr. Stern at the hearing about whether the Planning Board could require JAC to provide a bond or some funding so that the developer would be responsible for any damages done to the well - if any were to occur - if the site was given approval.
But Mr. Stern said this week that he learned from attorneys that JAC couldn't be legally required to do so, and that he just asked the question as part of gathering information during the hearing.
Mr. Sinicropi also approached Township Committee members at a meeting last week, urging them to talk to the Planning Board about the warehouse. But Township Committee attorneys told members not to comment on the issue, saying that its up to the Planning Board to rule on the issue.
Ms. Tullio said based on Mr. Sinicropi's letters and correspondence to township officials, she believes both he and Mr. Lieberman are "attempting to intimidate and bully the Planning Board into denying the application," even though the project was previously approved.
She said Mr. Sinicropi "just doesn't want to see it in his backyard, and that's just what it comes down to."
Mr. Gerken said Monday that he didn't want to comment on the Meirs Road issue, but said that it was his understanding that as long as the developer keeps the septic system out of the designated well head protection area, the Board of Health would approve it.
Still, Mr. Lieberman said he and his clients take issue with the continuing changes the developer makes in its application, instead of having all of its information together to present to the board in order to prove its case, he said. He also said he felt the judge who sent it back to the Planning Board didn't give permission for JAC to modify its application.
"In our view, they didn't have a provable case and they've had a very substantial amount of time in order to do this right," he said. "For whatever reason, it seems to me that this is destined to go on indefinitely, and we just don't think we're being treated fairly."
Ms. Tullio said, "the Planning Board in the past and currently has continued to act prudently and reasonably on this application."
Mr. Stern declined to comment on the case, except to say that it was under the direction of the board's attorneys to carry the hearing to August.