Middletown reinstates overturned Master Plan

By J.J. Sullivan, III
Correspondent

MIDDLETOWN- Officials from the Planning Board passed a resolution Wednesday readopting the 2004 master plan, a move reinstating documents nullified by the appellate division of the Superior Court.

Instead, the board opted to reestablish the plan from 2004, 5-0, despite warnings from attorneys representing developer Mountain Hill that such an action was a direct breach of a judicial mandate.

A judicial ruling delivered Sept. 10 by a three-judge panel mandated the creation of an adequate replacement.

According to James H Gorman, the planning board attorney, "the invalidation [of the 2004 plan] was probably an error." He cited confusion among the judges over the status of former Mayor Joan Smith in developing and adopting the documents.

Gorman stated that the board had already submitted a certificate for reversal to the appellate division, with the decision possibly coming in a few months.

According to Gorman, Smith held no conflicts of interest, despite the opinion of the Superior Court to the contrary.

"While waiting for the certificate to be processed," said the planning board attorney, "we have to rely on a plan that can deal with the substantial burden of pending applications, affordable housing plans and other planning obligations."

According to planning board officials, the court determined the last valid master plan dated back to 1993, something untenable to board members.

Similar to a 2003 ruling by Judge Lawrence Lawson, Monmouth Vicinage, the appellate court invalidated the master plan, thus forcing the township to create an updated, more agreeable substitute.

Now, with the future of Mountain Hill's application once again on the backburner, township officials may have started a new chapter of the ongoing legal battle between the municipality and the developer of a vast town center set to span 137 acres of wooded property.

"There is an issue still pending before the appellate division that still needs to be responded to regarding the reversal of the master plan," Planning Director Jason Greenspan said.

Greenspan said Gorman believed there was a presumption on behalf of the court that Smith had participated in the whole voting and development process of the master plan.

"It is Mr. Gorman's opinion that the appellate division made an error when they invalidated the master plan," the planning director said. "The purpose of tonight's meeting was to reaffirm what we feel is the conflict to begin with, as well as to make sure there was a policy document in place that gives a foundation for all the ordinance amendments that have taken place," he added.

Planning Board Member Anthony Fiore said the 2004 master plan had been the basis and the foundation for all of the board's decisions over the past four years. The Republican candidate for township committee said he felt it was important to continue using the same guidelines, despite the outside circumstances.

"Personally, I viewed this vote as a strictly 'planning' matter, with no relevance to [the Mountain Hill litigation,]" he said. "My approval tonight had nothing to do with the proposed application [for a town center] and had everything to do with the fact both myself, the board and the applicants have been making decisions based upon this master plan for four years. We need some basis of document, and we can't go back to the 1993 plan."

THE LAW IS THE LAW

Attorney Gary Fox, speaking on behalf of Mountain Hill, was of an opposite mindset than Gorman.

Along with members of the extended Azzolina family, the lawyer joined officials and interested citizens on hand to watch the vote, waiting for roughly three hours and a brief executive session.

When it came his turn to speak, the attorney did not mince words.

"I think what you are doing tonight is a direct violation of the appellate division," Fox said. "I believe you are dangerously close to being in contempt of court if you proceed with the actions."

Fox acted with slow deliberation as he outlined a simple, fairly short argument against the revalidation, a case apparently developed after representing the Azzolina-backed company in numerous court conflicts against the township.

He spoke in a methodical, quiet pitch, discussing only a surprisingly scant number of talking points, touching upon the major points, the numbering and examination of eighth pieces of evidence enhanced this dramatic effect.

"The court said you must start fresh and do what you did back in 2004 after Lawson revoked the 2003 plan. You are not doing that," he asserted to the board members. "The court decision happens to be the law of the land at this second. Each and every one of us is obliged to adhere to that law, whether we like it or not."

The appellate court disagreed with municipal officials as well, deeming the title work performed for the Azzolina family sufficiently justified such a designation.

According to the appellate division, "Because we have concluded that Smith had a disqualifying conflict of interest requiring invalidation of the 2004 Master Plan and both 2004 AAC ordinances, the issues raised by Mountain Hill respecting the procedural and notice requirements of the MLUL; the alleged arbitrary, capricious and unreasonable nature of the municipal actions before us; the time-of-decision rule; and impermissible inverse spot zoning have all been rendered moot.

"[Smith's] responsibility in 2004 to respond to title inquiries respecting the refinance and the original searches she did into the title of Joseph Azzolina, Jr., and Judith Azzolina, was yet another 'involvement' in 2004 that disqualified Smith from voting on the 2004 Master Plan and the Dec 4 2004 AAC ordinance, whether she knew of their status as members of Mountain Hill. As a consequence, the 2004 Master Plan and both 2004 AAC ordinances are invalid and of no effect."

Members of the public also held different opinions on the matter.

Donald Pepe, both a resident and an attorney, asked officials why they were opting to continue with expensive litigation against the seemingly unyielding efforts of Azzolina and family.

"I have looked at the 2004 master plan, and it is outdated," he said, mentioning the lack of a housing plan or areas since designated as protected open space.

"[The township's master plan] is radically out of date. Why hasn't this been updated by our planners? What is going to happen when the appellate division nullifies the plan again in another two years?"

Pepe said the master plan "is now on all of the attorneys radar," asserting that if the township were to go before the Superior Court for a third time regarding this issue, they would probably be expected to follow the Sept. 10 decision.

Anthony Strangia, another resident, saw the continued litigation as a waste of tax dollars.

Strangia said the township had been "put under the gun" by Mt Laurel [COAH] obligations.

"You might be stopping a project that would solve the town's Mt Laurel problems, saving hundreds of thousands," he said.

Planning Board officials said that such a conclusion was unwarranted, scoffing at the simple attempts to calculate the amount of affordable housing units earned if the planned amount of residential units, 174, were built.

Gorman said that, under the current pending application, proposed no Mt Laurel housing.

Ultimately, board member Clifford Raisch came to a similar revelation as Fiore.

"The pending applications, the COAH plan, the other applicants coming before the board; we need to be able to make decisions," he said.

Deputy Mayor Pamela Brightbill, John Deus and Carl Rathjen cast the other three votes.

Missing from the readoption vote were Judith Stanley Coleman, Mary Lou Strong, Ann Prewett, Maureen Unsinn and Salvatore Izzo.

Editor's note: JJ tells me that Pat Walsh and Jim Whatshisname were not at the meeting.