The 5-count lawsuit was filed on behalf of Kennedy Auto Service Inc. and Excellency Enterprise, LLC, which are an Exxon station at 150 State Route 35, Gas of Eatontown, Inc., which is a Citgo station at 24 State Route 35, on Feb. 24. The business owners are looking to have all approvals for the project deemed null and void, for the developers to not begin any construction and reimbursement of legal fees.
The Eatontown Planning Board approved the site plan for the Wawa on Dec. 16 and memorialized its decision with a resolution on Jan. 13, giving Fidelity Eatontown the ability to move forward with its project pending the decision on how patrons would exit the facility.
The first count in the lawsuit alleges that the board violated the business owners’ “due process rights to be heard,” because an attorney and planner they had hired to present testimony on the “traffic impact and issues and overall planning issues,” were not given a chance to testify.
The attorney, William Potter, told the board’s attorney, Mark Steinberg, that he was unable to attend the meeting because of a medical situation and that board chairman Carl Sohl told Steinberg that the meeting would not conclude on Dec. 16, so Potter would have time to testify at a future meeting.
Steinberg’s written response to the first count of the lawsuit is that it should be dismissed
The second count alleges that because the the board awarded “at least 29 variances” to approve the project, that it “constituted the illegal practice of ‘rezoning by variance’.”
Among the variances granted was allowing a gas station on the Wawa site, which is not allowed by ordinance, because another gas station is closer than 2,000 feet from the site and a residential site is closer than 200 feet from the site. The third count states that the board “relied on the erroneous and misleading testimony of the applicant’s professional planner,” who said the proximity ordinance was declared invalid after a 1985 New Jersey Superior Court decision. This resulted in the board lacking “substantial credible evidence to support the award of the variances, deviations or waivers.”
Steinberg states the second and third complaints should be dismissed.
The fourth count states that the applicant did not demonstrate proper storm water management compliance by allowing the project because it used an “invalid” computer-generated spreadsheet.
The fifth count the board’s decision to approve the project was “arbitrary and capricious,” because of a “lack of substantial, fact-based and credible evidence in support of the multiple approvals granted to the applicant.
Steinberg said the board denies the allegations and that the fourth and fifth counts should also be dismissed
“The plaintiff’s complaint is frivolous and malicious and this defendant reserves all of its rights to recover all fees and costs,” Steinberg states. “(The board) did not act in an arbitrary, unreasonable or capricious manner, nor did it act without adequate factual and legal foundation.”