Township Faces At Least Six Lawsuits Over Warehouse Ordinance

The township’s new ordinance limiting where warehouses can be built has spawned at least six lawsuits asking for it to be struck down due to the way in which it was created, introduced and adopted.

The suits were filed between August 30 and September 2 and name the Township, Planning Board and the Mayor and Council as defendants.

The suits have been filed by

• MCS II Franklin, LLC, PES Franklin II, LLC, and LLL 46, LLC, which own affected property at 163 Weston Road
• SHI International, which owns affected property at 290 and 300 Davidson Avenue
• North Washington, LLC and ONYX 1718, LLC, which are the contract purchasers of affected property at 486 and 488 Elizabeth Avenue
• Toranco Executive I & III, LLC and Toranco Executive II, LLC, which own affected properties at 1, 2 and 3 Executive Drive
• Helaine Heller Marital Trust, Heller I Partnership, L.P., Heller II Partnership, L.P., Heller VII Partnership, L.P., Heller VIII Partnership, L.P., and Three Zero Two – M – Franklin Township, L.L.C., which own affected property at 11 and 12 Jensen Drive, 8, 11, 15, 18 and 20 Heller Park Lane, Clark Street, and 245 Belmont Drive.
• Northern Nurseries, Inc., which owns affected property at 487 Elizabeth Avenue.

In general, the developers claim that the warehouse ordinance was, as one lawsuit phrased it, “rammed through” during the summer without the traditional studies and Master Plan examination.

The ordinance was created in the wake of opposition to a proposed warehouse abutting the Canal Walk senior residential development. The ordinance changes warehouses from a permitted use to a conditional permitted use in the Business and Industry zone, and would prohibit the construction of warehouses on land within 500 feet of a residential zone.

The ordinance also changes the zoning of a number of parcels to prevent the construction of warehouses there.

The developers point out that the last time zoning changes were made that affected warehouses, in 2020, they were preceded by a lengthy Master Plan reexamination and an economic study by an outside company. That was also when the Business and Industry zone was created.

In general, the developers claim that the latest zoning ordinance violates the Township’s Master Plan, as well as the state Municipal Land Use Law.

“Prior to its introduction of the Warehouse Ban, and unlike what occurred during the
2020 Rezoning process, the Township Council took none of the steps that the MLUL requires to
ensure the adoption of a “carefully drawn and considered” zoning ordinance,” the Heller lawsuit states.

“It will be shown in this case that Defendants rushed to get the Warehouse Ban adopted for two reasons: first, to impede and defeat applications for warehouse development already filed, but not yet deemed complete; and second, to appease residents of the neighboring planned residential community known as Canal Walk, who attended the May, June and July 2022 Township Council meetings en masse to oppose a proposed warehouse development in their neighborhood,” the suit states.

“(B)owing to political pressure from a vocal neighborhood group and others,
Defendants rammed-through the Town Council – in the middle of the Summer – a poorly
conceived, arbitrary zoning ordinance amendment that unfairly punishes owners of existing
warehouse facilities and precludes property owners from constructing warehouse/distribution
facilities going forward,” the suits states.

Heller said that the new ordinance transforms all of its warehouse properties into non-conforming uses, which limits any expansion they may make.

In their lawsuit, the Northern Nurseries developer claims that the Township’s 2020 Master Plan calls for a 100-foot buffer between residential uses and warehouses, and that the 500-foot buffer in the contested ordinance “directly contradicts and is inconsistent with the 100 foot buffer specified in the Township’s Master Plan as updated on September 1, 2020.”

“No studies have been commissioned or research conducted by or on behalf of the Township regarding the sufficiency of the warehouse buffer in the B-I zoning district or any need to increase the size of the buffer,” the lawsuit states.

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