Mountain Hill wins battle, but Middletown to continue war over Town Square

By J.J. Sullivan, III
Corespondent

MIDDLETOWN- Mountain Hill may have won the battle, but the war continues on.

Despite a resounding victory by way of a unanimous appellate court decision, efforts to erect a controversial "town square" met with yet another string of legal and political hurdles last night, Sept. 30, as the governing body passed a resolution declaring their intentions to seek a reversal through the last remaining avenue of judicial appeal, the state Supreme Court.

The township committee unanimously approved the resolution, 5-0, ratifying the submission of a certificate to the Supreme Court, one of a few last-ditch attempts to overturn the Superior Court ruling that nullified the 2004 Master Plan, allowing the resuscitated project a deathbed reprieve, rescinding the hold placed on the submission of applications.

Now, just two weeks after being forced to review the application and abandon their master plan, township officials are contesting the validity of the judicial ruling, with the Planning Board looking to reinstate the 2004 plan deemed devoid of merit by the appellate division.

There was a motion filed by the Planning Board relative to the nullification of the 2004 Master Plan, said Township Attorney Bernard Reilly. He said there was an unspecified inaccuracy or error contained in the opinion, something that the township attorney inferred offered strong grounds to file the motion for reconsideration.

The Planning Board will attempt to readopt the 2004 master plan at tonight's meeting at Town Hall, rendering a vote regarding their desire to reinstate the previous 2004 master plan.

The Sept 10 decision mandated that the Planning Board review an application from developer Mountain Hill LLC, for the proposed community hub. The multiuse mega-complex was designed to span roughly 135-acres of forestry, behind Spirits Liquors near the corner of Kings Highway East and Route 35.

The appellate division identified instances where members of the committee voted on issues concerning the town center, yet remained in possession of conflicted interests, having previous financial dealings with the developers, relationships which the appellate division found retained enough potentially-damaging influence as to merit the nullification of the adopted motions, whether it be the zoning changes made to the property or the revisions culminating in the 2004 Master Plan.

Under state Ethical Codes, a developer cannot have financial dealing with any government official or agent that they will how power over in regards to the revision of zoning, the drafting of master plans or the adoption of ordinances.

According to the decision, "Mountain Hill shall promptly select the application it wishes to prosecute and the Planning Board shall proceed in accordance with the time constraints of the municipal land use law (MLUL) and local developmental regulations, if any."

Under the court ruling, the Azzolina-owned company may present any of the four applications it had previously given the Planning Board for review. The ruling said that the township should have first application submitted in 2003 should been subject to objective review.

If the state Supreme Court refuses to give Middletown a hearing, municipal officials may choose to accept the application and approve the developer's plans pursuant to the ruling and appropriate to state law.

The town center, if it were ever to break ground, would function as a multiuse development, featuring 1.5 million square feet of both office and retail space. Plans allow for the inclusion of apartments, townhouses and parking accommodations for up to 5000 vehicles, the center designated for construction amid the dense foliage behind the fringes of the Route 35 corridor.

The committee resolution was a direct response to the Sept. 10 Superior Court ruling in favor of a township developer, and a sign of the desire on behalf of township officials to resurrect the 2004 master plan that was struck down and replaced with the master plan from 1993.

At the special meeting, municipal officials voiced their intent to seek certification from the state Supreme Court to put both the case, and, ultimately, the fate of the proposed development, in the hands of NJ's highest judicial venue.

These actions were further proof of the committee's bipartisan wish to prolong the legal wrangling that has resulted in countless hours of back-and-forth courtroom litigation.

Regardless of deciding their opposition to the court ruling, the committee's plans for a specific course of action remained vague.

"I think we have a lot to decide," Committeeman Sean Byrnes said, the first of several similar statements made by the committee. "We have to examine all the options."

Officials said attorneys from the Planning Board, Zoning Board and the municipality were busy reviewing the relevant information to achieve a successful appeal.

"We are basically waiting to see which [of the four plans] they submit," Byrnes said, again echoing the uncertainty of the situation.

The legal proceedings have exhausted every facet of the municipal and trial courts since beginning in 2003. The Supreme Court is the only avenue unspent.

"The resolution pertains to the ongoing litigation regarding zoning issues relative to Mountain Hill," Reilly said.

Mountain Hill, a developer owned and operated by former GOP state legislator Joseph Azzolina, Sr., has spent eight years embroiled in a lengthy legal battle against both the Township Committee, as well as the planning and zoning boards.

The two sides engaged in a bitter judicial bout featuring multiple rounds, with both parties contending for the right to decide the fate of the behemoth facility that may be erected among the empty woodland adjacent to the Route 35 corridor.

Responding to inquiries regarding the absence of an updated master plan, Reilly said the officials had identified a "clearly-present, factual error" relative to that facet of the appellate decision, which would serve as grounds for the township's decision to file such a motion.

"The first round of litigation was in the trial court out in Freehold," he said. "The trial court ruled one way and the appellate court ruled another, so the issues at stake here are very important."

Reilly said numerous and consistent divergences of opinion among judges regarding issues of extreme relevance to the township necessitated that Middletown take reasonable steps to obtain a reversal; something available exclusively in the chambers of the state's most powerful judicial platform.

CELEBRATE

Mountain Hill and the Azzolina family had cause to celebrate after hearing the Sept 10 decision.

The three-judge panel ruled that the first of four applications submitted by Mountain Hill between 2003 and 2004 was deserving of evaluation by the planning board, in essence concluding that the plaintiffs had grounds for a vacation of restrictions, blockades apparently resulting from improper adherence to established procedure starting at the onset of the application process.

The recent decision invalidated a zoning ordinance, as well as the township's 2003 and 2004 master plans, remanding the case back to Superior Court Judge Lawrence Lawson, Monmouth Vicinage, and forcing the township to revert to the master plan from 1993.

Presently, the 1993 master plan allows for review and consideration of developmental plans submitted to the Planning Board, a task apparently simplified after the Superior Court struck down several zoning variances deemed inapplicable for a myriad of reasons.

Argued in Jan 2008, the plaintiffs and defendants were treated to a synthesized version of the consolidated arguments. The opinion, clocking in a roughly 95 pages, is evidence of how personal the relationships between the parties was, and how quickly those relationships went south.

Township officials are now tasked with handling the revisions and/or corrections of the newly-applicable Master Plan, adopted in 1993, whose zoning remained reflective of a municipal that enthusiastically encouraged town center development, the polar opposite of the master plan struck down by the Superior Court appellate division.

Instead, they will put the issue to vote tonight.

Reilly said it was a sound, reasonable decision to move for further judicial hearings, saying the possible side effects of a town center failed to garner proper consideration in the appellate decision, one of a multitude of reasons the township attorney mentioned as the crux behind filing a successful motion.

UNITED FRONT

The solidarity of the committee on a significantly polarizing issue was evident as elected officials from both sides of the aisle spoke cautiously of the need to take things one step at a time.

Deputy Mayor Pamela Brightbill said she was "pleasantly surprised" by the unanimous vote.

According to the Republican, up for reelection this November, "I am thrilled that, for the sake of the community, we were able to proceed in a nonpartisan manner."

Byrnes lauded the show of unity on behalf of a governing body that has become defined by partisan allegiances. "So far it has been a non-partisan decision," the first-term Democrat said.

Byrnes, who, along with Committeeman Patrick Short, holds one of two Democratically controlled seats on the governing body, cautioned against jumping to any conclusions, stating that everything remained mere "speculation."

"[The committee] voted to go forward and have the Supreme Court reconsider [the Superior Court decision]," he said.

Everything else remained an uncertainty, he added.

"So much depends on what happens next; everything discussed at this stage is hypothetical. We are not even sure which [of the four plans submitted to the Planning Board by Mountain Hill] would be submitted to [the Planning Board] for review," Byrnes continued.

Like other officials, Byrnes voiced a desire to find a solution amenable to the entire community.

However, "the ripple effect" of such a potentially enormous development had citizens and officials worried alike.

According to Mayor Gerard Scharfenberger, Middletown was in danger of incurring a severe cost in terms of inflated affordable housing quotas.

The mayor asserted that if such an immense structure were constructed in Middletown, the impact on the Council on Affordable Housing [COAH] obligations would be tremendous.

According to Scharfenberger, the addition of a town center could potentially result in a staggering increase in the amount of housing units required to meet an already overburdened, unfulfilled COAH quota.

Middletown continues to reel after state legislators abolished regional contribution agreements (RCAs), a method used by larger, economically viable municipalities to alleviate their COAH obligations by entering an agreement to construct affordable housing units for an outside community, all done in exchange for credits from the state authority for use toward the COAH quota.

"The impact on the COAH quota would be disastrous," he said in regards to the ruling. "I have not done the specific calculations, but I know that, for every 16 new jobs, the township must provide one unit of affordable. [Municipal officials] have to calculate the exact number, but [the Town Center] could have a significant impact on our COAH quotas."

Scharfenberger refused to speculate as to the township's probable course of action. The mayor did assert, however, "The Township was very disappointed with the [appellate decision.] We are looking at all the options available to us."

After a thorough examination of all available actions, Scharfenberger said the committee and township professionals would decide how to proceed after considering which options are the most beneficial to the community.

"We just want to do what's best for the town," the mayor said, a theme that may dictate the progression of this situation.

The mention of a "ripple effect" offered Reilly another chance to justify further appeals.

According to Reilly, "That's part of the reason why [this case] should be heard by the Supreme Court. There are potential effects on other properties or other applications that are unintended. I don't think were thought about by the courts before they got into this. There would be a whole litany of effects, so that's one reason for moving forward."

SUPPORT

Others voiced support for a town center, denouncing the continued legal confrontations by the municipality regarding this issue.

Bernice Roberts, Arlene Drive, decried the motion to continue resisting plans for a town center. "A three-judge panel was unanimous and was very clear. I think all residents should read the opinion, which is available online," she said.

According to Roberts, the inglorious plight of municipal officials to stop developers would become more apparent if more residents were antiquated with the facts of the case.

"That is ridiculous," she said of the decision to continue litigation. "I think you should put the opinion in Middletown Matters or the Web site. If Middletown [residents] were to read [the opinion], they would all say 'You are beating a dead horse.' What more do you want to put Middletown through? It is a disgrace.

"Three judges unanimously said Middletown was wrong, wrong, wrong on everything! There were conflicts of interest, all kinds of very unsavory things were in that decision, and I don't think you should go beyond [that decision.]"

Andrew Bane of Leonardo asked if the issue could be put to a public vote during the November elections.

"Could this [issue] go on the November ballots to get a feel of the public opinion?" he asked.

Township Administrator Anthony Mercantante responded that a specific statute prevented land use and zoning matters from being altered through referendum.

[Referendums] are not the ways the desired changes are obtained, Reilly reiterated.

The state appellate courts decision can be viewed here.

Planning Board member Anthony Fiore, a GOP candidate for Township Committee tread carefully expressing his intentions not to raise any potential issues of conflicts of interests regarding the vote scheduled for tonight. "The Planning Board needs to decide whether they want to reinstate the previous master plan," the Republican committee hopeful said, "[Municipal officials] have an obligation to the public to weigh the potential benefits versus the potential detriments, and that is something I will take into consideration when examining the available options."

Democratic candidates Patricia Walsh and James Grenafege were noticeably absent from the special meeting.