By John Burton
SHREWSBURY – It was a night of legal sparring for the borough Zoning Board of Adjustment as well as for its attorney as lawyers for the proposed QuickChek and its opponent squared off.
When the zoning board on April 6 again took up the application for a proposed convenience store and gas station for Shrewsbury Avenue, board members and Kevin E. Kennedy, the board’s attorney, wound up spending the majority of the more than two-hour hearing contending with legal wrangling over various procedural issues, requests and objections raised by the lawyers representing the applicant and the primary objector – Lukoil America.
Lukoil has its own gas stations in the area and is concerned over a number of issues, apparently most prominently the impact QuickCheck’s filling stations would have on Lukoil’s business.
Kennedy was obliged to evaluate the issues raised by the two parties’ legal eagles before the board could proceed for what already appears will be a lengthy application process.
The board has heard the application on two previous evenings, in January and then February, and began weighing those complaints even before either side had the opportunity to present witnesses or evidence related to the application.
Kennedy acknowledged to the board, “The risk of litigation is clearly present,” for an appeal to Superior Court, however the board ultimately decides.
Shore Investment Realty, LLC, the developer of record, through its lawyer, Robert C. Shay, argued Lukoil failed to qualify for standing as an objector.
Lukoil’s attorney, Michael Convery, countered the corporation is a property owner and taxpayer, which in and of itself gives it standing.
Kennedy’s opinion was to agree with Convery, fearing, “Not allowing Lukoil to speak could substantially impact any decision we make here,” that may be challenged in court. He concluded not allowing the company the chance to be heard would be a “very, very, very, very, very, very radical move.”
“We’ve never been in a position to deny a party to be heard,” said board Vice Chairman Richard Schwartz.
Shea stressed Lukoil should be obligated to make available someone from the oil company for cross-examination, and if necessary, the board should issue a subpoena to ensure an appearance.
Convery, who agreed to that provision, had previously challenged QuickChek by alleging it is in violation of the federal Sherman Antitrust Act.
That 19th century law, in general, was intended to prevent monopolies that would prevent fair commercial trade in an industry.
Kennedy conceded he wasn’t an expert on federal antitrust law but said his review of the provisions had him finding that assertion unsubstantiated.
Given the Monmouth County Planning Board has yet to render a decision on this proposal, as Shrewsbury Avenue is a county roadway, Convery recommended the local board delay any hearing until the county officials decide. But local boards regularly hear and rule, simply noting its decision is contingent on the county’s verdict, some on this board observed.
On the other hand, Kennedy explained, given the application has been deemed complete, under state land use law, delaying the developer to proceed with these hearings could result in an approval by default.
Listening intently and patiently was Clare Ward. Ward lives on Birch Drive, a residential street behind this commercial site – which had previously been an office building.
Ward said after the meeting “I’m very worried,” about what was being proposed. “I worry about fire,” but, she added, “my main concern is the quality of the air…the noise factor, the air quality, the chemicals…There is the light pollution factor.
“There are a lot of different factors that have me worried,” as well as some of the other area residents.
The 6.35-acre site, at 575 Shrewsbury Ave., is currently vacant, having previously served as offices for Verizon Communications. Shore Investment Realty, LLC is hoping to win board approval to raze the existing structure there and construct a 5,496 square-foot QuickChek convenience store, which would allow for indoor and outdoor seating for food consumption; and a 10-pump gas station at the site.
To accomplish this the developer would need the board to grant a use “D” variance, as well as a number of other variances and design waivers.
The board is expected to continue hearing this application at a special meeting scheduled for April 27 at 7 p.m.
