- Environmental Law
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- Appeals Court Advocacy
May 26, 2005
By W. JACOB PERRY
BERNARDS TWP – A fight against plans for a new Millington Baptist Church on Mine Brook Road continued before the Planning Board on Tuesday, May 17, as objectors presented legal arguments that would send the seven-year-old proposal back to square one.
Karen T. Del Vento of 397 Mine Brook Road, who is an attorney, maintained that the board could not grant final site plan approval for the project because the application was received after the preliminary site plan approval expired.
Under that scenario, Millington Baptist might need to apply for a new preliminary site plan.
Although Millington Baptist’s attorney, David Ramsey, challenged the argument, Board Attorney Stuart R. Koenig said there were unanswered questions. He asked Del Vento and Ramsey to submit briefs for his review.
“I do think it’s an issue that should be reviewed by the board,” Koenig said. “I do think it needs some analysis.”
The hearing, which drew about 105 people both for and against the proposal, lasted more than three hours before it was carried to 7:30 p.m. Tuesday, July 19.
If that hearing proceeds, the objectors plan to present testimony from two expert witnesses – an engineer and an environmentalist.
Millington Baptist, now located at the corner of Valley and King George roads, is seeking to build a 67,390-square-foot complex with up to 1,200 seats, 21 classrooms for Sunday school and 403 paved parking stalls on 88.9 acres in a three-acre residential zone.
The project received preliminary approval in a 5-4 vote in August 1999, following seven stormy hearings in which large crowds attacked its size and scope. The objectors later tried and failed to overturn the approval in court.
Because the project was outside the municipal sewer district, it also needed state Department of Environmental Protection (DEP) approval to allow a septic disposal field near the Dead River. After a four-and-a-half year review, the DEP granted a final permit in April 2004.
A request for final site plan approval is usually little more than a formality. But the objectors have said it should denied due to changes made since the preliminary approval. Church officials maintain that the changes were largely unregulated aesthetic improvements.
Last Tuesday’s hearing, the fourth on the final plan site request since Dec. 7, was to begin with the objectors’ case, since Millington Baptist had completed its presentation. Ramsey, however, said he wanted to recall the project architect to address interior lighting on a bell tower.
But before Ramsey could do that, Koenig noted that Stuart J. Lieberman, a Princeton attorney representing two objectors, had raised another legal issue.
That issue was whether Millington Baptist’s consultants needed to disclose any political campaign contributions in accordance with a township ordinance adopted last Oct. 26. The ordinance required disclosures from developers needing a variance for a preliminary site plan approval.
Lieberman, while conceding that the preliminary approval preceded the ordinance, said the ordinance should apply to the final plan because it was designed “to curb bad past practices.”
Ramsey disagreed, saying if a variance was already granted, it made no sense to apply the ordinance to a final site plan requiring no relief from zoning standards.
Koenig agreed that the ordinance should not apply. The board concurred in a 7-2 vote, with Richard Macksoud and Bert Fonde dissenting.
Project architect Ben Lee then testified about the bell tower lighting. The tower, which would have no bell, would be 85 feet high, with an opening between a height of 52 and 57 feet, topped off by a spire.
Lee said that at a height of 22 feet, each side of the tower would have a band of four light bulbs, of which two would point down and two would point up. There would be a total of 16 bulbs.
Lee posted two computer-generated pictures of how the tower would look at night. But he said the picture showed the tower being more illuminated than it would actually be.
Lieberman and 10 residents went on to question the lighting level.
“What else isn’t on this incredibly large, invasive structure?” asked Laura Neff of 430 Mine Brook Road in Far Hills. “I don’t think you know.”
After Lee stepped down, Del Vento presented her legal arguments against further hearings.
Del Vento said the preliminary approval, which the board formally memorialized on Sept. 7, 1999, was good for three years and received the maximum of two, one-year extensions, leading to a final expiration on Sept. 7, 2004.
But Millington Baptist did not formally file for a final site plan approval until Sept. 23, 2004, she said. She then cited a state court ruling that allowed Point Pleasant to reject a request for final site plan approval because the preliminary plan had expired.
Ramsey disputed Millington Baptist’s preliminary expiration date. He noted that the board, in response to a lawsuit from the objectors, voted to amend the approval on Oct. 3, 2000.
Ramsey also saw differences with the Point Pleasant zoning ordinance, saying Bernards appeared to allow more leeway.
He said if the board had not applied an expiration date to other proposals, it could not do so for Millington Baptist.
Koenig said he needed to know more. “I don’t recall the Planning Board having to face this issue.”
Copyright 2005 The Bernardsville News
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