TOWNSHIP OF WASHINGTON—A Superior Court judge has dismissed an appeal by 660 Pascack Realty to overturn the Zoning Board of Adjustment’s 2023 denial of its proposal to build a two-building, 17,100-square-foot retail plaza at the busy Pascack Road–Washington Avenue intersection.
Judge Christine Farrington ruled that the Zoning Board’s 6-1 decision in May 2023 to deny the applicant’s proposal for Four Seasons Marketplace, which included multiple variances and a use variance, was not “arbitrary, unreasonable or capricious.” The complaint is dismissed with prejudice, Farrington says in her 26-page, June 28 order.
The appeal denial concluded a nearly 11-month legal effort to overturn the ZBA’s decision on a controversial shopping mall proposed at one of the township’s busiest crossroads. A large part of the 2.4-acre property remains vacant since three deteriorating, boarded-up homes on the site were razed last summer.
Most neighbors opposed the proposed mini mall, citing traffic, noise, and safety concerns. Nearby Meisten Street residents also worried about the impact on a small, unnamed stream bisecting their properties. This stream, a tributary of the Musquapsink Brook, feeds into the Oradell Reservoir and could be affected by increased storm runoff from the development.
We reached out to plaintiff attorney Bruce Whitaker and ZBA attorney Louis Lamatina for comments on the judge’s decision but did not receive immediate responses. [For more background, see “Nope! Zoning Board Rejects Strip Mall By 6-1 Vote” by Michael Olohan, May 22, 2023.]
Farrington reviewed all relevant ZBA hearing transcripts and counsel submissions. The complaint, filed in early August 2023 by Whitaker, aimed to overturn the denial on four counts. The judge rejected all four.
It was not clear whether 660 Pascack Realty, majority-owned by Seasons’ Catering principal James Kourgelis, would appeal the court’s decision. Efforts to reach attorney Bruce Whitaker were not returned by press time.
On page 23, Farrington writes, “The court finds although the Board could have granted the application on the evidence presented by the applicant, the failure to do so is not arbitrary, capricious, or unreasonable. The June 20, 2023 Resolution of the Board found that the plan offered by the applicant did not present a better planning alternative. The Resolution discounted the existence of commercial properties across the street and found the impact on the residential properties in the AA zone would be a substantial detriment.”
She continues, “The Board found the special reasons put forth by the applicant’s planner to be ‘insufficient’ because the free flow of traffic cited by the applicant had been effectuated prior to the application (albeit in part by the donation of property by the owner of the applicant’s property) and the improvement in aesthetics was not persuasive because the applicant owned the adjoining properties and, in the opinion of the Board, had allowed them to deteriorate.”
On page 24, Farrington notes, “Applicant argues that it did not contend a special reason existed because the use was an inherently beneficial use. The proposed use is not inherently beneficial.”
On the next-to-last page, Farrington wrote, “Applicant argues its proofs were uncontested and the Board’s findings deficient to support a denial. The Board responds its decision is entitled to a presumption of validity.”
Before her ruling, she states, “Essentially, the applicant argues that the improvement of the intersection made the proposed use a foregone conclusion. The basis for this argument of inevitability is also unclear.”
She adds, “In any event, the Board did not get the message and found sufficient deficiencies in the application to deny it. The court cannot find on this record the denial was arbitrary, capricious, or unreasonable. The complaint is dismissed. The appropriate order has been prepared and uploaded. All counsel is served this date with this order and opinion via eCourts.”