BY JAMIE ROMM -In what may be the final blow for opponents of the Town Center project, the New Jersey Supreme Court declined to hear appeals by the Middletown Township government challenging the project.
The denial lets stand a lower court decision that will allow the mixed-use development to go forward.
The state Supreme Court released three decisions on Jan. 20 denying appeals by the Middletown Township Committee, the township Planning Board and the Zoning Board of Adjustment.
The appeals sought to overturn a ruling by the Appellate Division of state Superior Court issued Sept. 10 in favor of the Town Center project proposed by Mountain Hill LLC for Route 35 north at Kings Highway East.
“We are grateful that the Appellate Division and Supreme Court agreed with my client that Middletown and its two boards acted improperly standing in the way of this amazing project,” Mountain Hill’s attorney Gary F. Fox, of Ocean Township, said in a press release. “I give tremendous credit to my client for not giving up when it was unsuccessful at the trial court level.”
Fox said in a press release issued last week that the decision validates his client as well as what he has been saying over the past decade: that the Town Center project is a valid project.
“This case is an example of why appellate courts exist; to correct errors made at the trial court level,” Fox said in the release. “Now it’s time to move ahead and get this project going.”
The plan currently before the Middletown Planning Board proposes approximately 1.4 million square feet of retail space and 200 residential apartments.
The appellate court had ruled that formerMayor Joan Smith should not have had a vote on the Planning Board hearing to rezone former Assemblyman Joseph Azzolina Sr.’s property from a town center to an active adult community, because her title company had prior business dealings with Mountain Hill.
“We conclude that Smith had a disqualifying conflict of interest that infected not only her official actions in 2001 but also those in 2004,” the opinion stated. “As a consequence, the 2004 Master Plan and both 2004 AAC ordinances are invalid and of no effect.”
Former Middletown Township Attorney Bernard Reilly said last October, when filing the appeal with the Supreme Court, that he would have to prove that Smith did not have a conflict of interest in voting against the Town Center proposal.
The township argued that there was no conflict of interest because her business relationship with members of Mountain Hill in the past was minor and occurred many years prior.
The Supreme Court decision left in place the appellate court’s decision overruling trial court Judge Lawrence M. Lawson, who had allowed Middletown to rezone the Town Center project out of existence.
The appellate panel ruled entirely in Mountain Hill’s favor, overturning the trial court decisions, invalidating the rezoning, the Master Plan and numerous rulings by the Zoning Board.
The decisions end Middletown’s right to appeal and give a green light to Mountain Hill to proceed with its Town Center project without any further interference from the township.
The township’s December 2008 affording housing plan includes the Town Center tract and anticipates it will provide at least 400 residential apartment units of which 80 would be deemed affordable and go toward its state-mandated affordable housing obligation.
Mountain Hill and Middletown have battled in court over development of the property for more than a decade.
On Sept. 30, the Township Committee unanimously agreed to petition the New Jersey Supreme Court to overturn a lower court ruling that the project could go forward.
The Sept. 10 decision by Appellate Division Judge C.L. Miniman invalidated the township’s 2004 master plan and directed that the 1993 master plan be the one the township would have to follow. The court said the Planning Board should have heard Mountain Hill’s January 2003 application.
The court overturned a 2006 decision by Lawson who ruled the Planning Board should follow the 2004 master plan, which changed the zoning to an active adult community and blocked the Town Center development.
On Oct. 1, 2008, the Planning Board passed a resolution reaffirming its 2004 master plan, which does not permit the proposed $150 million, 137-acre mixed-use development.
Mountain Hill, which is controlled by members of the Azzolina family, sought to overturn a zoning change adopted by the Middletown Township Committee about five years ago to stop the project from getting off the ground.
According to Fox, the Azzolina family acquired this property over a period of many years between 1954 and 1993 with the goal of building a shopping center.
Fox said the 1993 master plan supported the Town Center project while the 2004 master plan did not permit it.
On Oct 31, 2003, the Planning Board denied Mountain Hill the ability to file any more applications for the Town Center.
The revised master plan in 2004 was approved to establish a model for land use in Middletown and infuriated proponents of the town center development.
The plan, unanimously adopted by the Planning Board on Jan. 29, 2003, was a policy document “to serve as a development and conservation guide for the 24,000-some acres that comprise the township,” as described in the plan.
See story>>> Here