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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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08/06/97.

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