97Feb20
Village Told to Complete
Process For DOT and DEP Permits for March Meeting
Judge Delays
Start of Cases Involving ShopRite Appeal, Related
Litigation, Until Garwood Votes on Final Site Plan
By PAUL J.
PEYTON
Union County Superior Court
Judge Edwin W. Beglin, Jr. decided last Friday to
postpone on the numerous litigation pending before the
court involving two applications by Village Super
Markets, Inc. to construct a ShopRite supermarket on
North Avenue.
Judge Beglin said he would
rather wait until the Garwood Planning Board has rendered
a decision regarding a final site plan by Village to
construct the store solely in Garwood. The Garwood board
is scheduled to resume its hearings on the final
application on Wednesday, March 26.
The case evolves out of the
original application by Village to construct a 58,000
square-foot store in Westfield with a portion (30
percent) crossing into neighboring Garwood where the
parking also would be located. The case originally was
heard before both the Westfield and Garwood Planning
Boards. The Garwood board then pulled out of the hearings
while it worked to amend its zoning ordinance by creating
a Community Commercial Zone.
The creation of the zone was
cited by Shirley Ann Fontana of Westfield in her lawsuit
challenging the Garwood Planning Board’s approval of
the Westfield/Garwood ShopRite plan. Mrs. Fontana claimed
the zone "was tailor-made" for Village’s
site plan application in that, among other things, it
"specifically permitted food stores" of up to
60,000 square feet, thus permitting the ShopRite as an
accepted use.
The suit also states Garwood
could not approve such a zoning change since it had yet
to adopt a land use plan element and housing plan element
as part of its master plan which also is required by the
state Council on Affordable Housing in regard to Mount
Laurel housing.
Among the many charges in the
suit by Westfield residents Dr. Ulf and Maryann Dolling
over the Garwood-only plan is that Village misled the
Garwood Planning Board by proceeding with its appeal of
the Westfield Planning Board’s decision.
The Dollings have claimed the
Garwood board had made it clear that it did not want to
consider the Garwood-only application if Village was
going to continue its option of the Westfield/Garwood
store plan.
The Westfield board defeated
the application for the Westfield/Garwood store plan in
May of 1995. That summer the Garwood board approved the
preliminary application for the same site plan. A new
application for preliminary site plan approval, placing
the entire store and its parking lot in the borough, was
later approved by the board.
The Dollings, represented by
Westfield attorney Brian Fahey, have filed litigation
challenging the Garwood board’s decision in granting
preliminary approvals in both the Garwood-only and
Westfield/Garwood plans. Mrs. Fontana, represented by
William Butler of Westfield, also has challenged the
approval of the Westfield/Garwood plan by the Garwood
board.
Mr. Butler also is representing
John R. Weidele, Sr. of Garwood who has filed legal
action against the board’s decision to grant
preliminary approval of the Garwood-only ShopRite.
Mr. Butler and Mr. Fahey, Judge
Beglin said, will be able to amend their legal challenges
against the preliminary approvals granted by the Garwood
board if the board approves the final site plan which is
expected.
As soon as those briefs are
filed, including memorialization of the board’s
decision, Judge Beglin indicated he will call a pretrial
telephone conference with the attorneys involved in the
cases to determine how to proceed with the case,
including the setting of a starting date for the trial.
Steven Barcan, representing
Village Super Markets, indicated, when questioned by
Judge Beglin, that the firm fully intends to proceed with
its Garwood-only plan.
No action was taken on the
Garwood ShopRite application in 1996. In December of the
previous year the Westfield board, facing heavy public
opposition, declined to support a "settlement
agreement" with Village. That agreement would have
made numerous amendments to the site plan which was
defeated by the board.
Judge Beglin said he first
wants to deal with any of the challenges to the
ordinances involved in the Garwood case. The judge is
expected to deal with all the Garwood cases first before
addressing the Westfield board’s decision.
Mr. Barcan indicated he expects
Village to gain the necessary permits from the State
Departments of Transportation (DOT) and Environmental
Protection it needs to proceed forward.
The DOT issues involve adding
green time for a traffic signal at the exit driveway for
the property, curb cuts and two-lane striping of North
Avenue near the Hess service station.
Judge Beglin indicated he was
surprised Village had yet to get the necessary permits
which he said he did not think should have been a major
problem to obtain.
In addition to its appeal,
Village has filed a damages claim in the amount of $5.1
million against the Westfield Planning Board.
The Weidele and Fontana
challenges charge that approval of the ShopRite store,
whether it was the Westfield/Garwood or Garwood-only
plans, would create traffic "gridlock" on North
Avenue and intersections near the site.
In his lawsuit, Mr. Weidele has
claimed that during the hearings on the Garwood-only
plan, the Garwood Planning Board denied Mrs. Fontana and
the Dollings permission to participate during the
hearings by citing them as not "interested
parties" in the application.
Also charged in the lawsuit was
a claim that Mrs. Fontana and the Dollings could not
participate in the hearing before the board on November
8, 1995, unless they disclosed the financial arrangements
they had made with their attorneys.
Plaza Properties (owners of the
strip mall on North Avenue which would be demolished to
make room for the ShopRite parking), Village Super
Markets, and the borough of Garwood are co-defendants in
the Dolling, Weidele and Fontana lawsuits.
Norman Sevell, the owner of the
Westfield Lumber and Home Center property, has been named
as a defendant in the Garwood-only challenge filed by the
Dollings. Judge Beglin said he intends not to hear that
case due to a conflict involving Mr. Sevell. The
judge’s daughter, a newspaper reporter, interviewed
Mr. Sevell (who owns a towing company) regarding the
Garden State Parkway towing contract.
Among Village’s objections
to the Westfield Planning Board’s decision is the
fact the board made its decision in part on concerns over
an increase of traffic along North Avenue over which it
does not have jurisdiction -- the DOT does.
Village cited lost profits
including out-of-pocket expenses as part of its damages
claim. The firm first filed its application before the
Garwood and Westfield boards in 1992.
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