The Franklin Reporter & Advocate Eight Villages, One Community
There was more legal wrangling November 17 in the controversial B9 warehouse development on Schoolhouse Road.
Attorneys for the the developer and a Canal Walk-based citizens group opposing the development argued in court papers over some of the conditions of approval that will be attached to the project’s final approval.
The Planning Board attorney took issue with the developer’s attorney filing, saying that it presented information that was not asked for by the presiding judge.
Essentially, the filings show that the developer accepts 28 of the 30 conditions imposed by the Planning Board, and the citizen’s group wants those conditions and more approved.
The plan is to build one 144,450-square foot warehouse and one 70,970-square-foot warehouse on a 20-acre plot at Schoolhouse Lane and Mettlers Road.
The Planning Board denied the application on September 26, 2023, after eight hearings.
The developer appealed, and a state Superior Court judge reversed the denial in a scathing opinion, and ordered that a series of “reasonable” conditions of approval be created by the Planning Board and submitted for the Court’s approval.
The Board adopted its list of 30 approval conditions at a special meeting held on August 6.
In his November 17 letter to state Superior Court Judge William Mennen, Jonathan Epstein, the attorney for Link Logistics Real Estate – the developer of the B9 project – argued against conditions that would require the developer to adhere to the Township’s noise nuisance ordinance and that prohibit the storage of any hazardous substances.
Regarding the noise nuisance ordinance, Epstein told the Judge that the ordinance was not in effect when the Board voted on the B9 application. He said case law mandated that an applicant cannot be held liable for a condition that was not in effect at the time of approval.
Writing about the hazardous material prohibition, Epstein told Judge Mennen that the request was improper for several reasons.
“First, this restriction was neither requested by the Planning Board nor discussed as a proposed
condition during the hearings, and it was never agreed to by the Plaintiff,” Epstein wrote. “Furthermore, the subject matter of Condition 22 — whether a facility constitutes an ‘H use’ — is not a zoning or planning issue within the Board’s expertise or jurisdiction. The classification of a building as an H-use falls under the Uniform Construction Code and is determined by the construction official at the building permit stage, based on the specific proposed operations — not during site plan review.”
“Finally, it is Plaintiff’s understanding that no similar condition has been imposed in comparable warehouse development applications,” Epstein wrote. “The selective inclusion of this condition in the
present matter — without discussion at the Planning Board hearings or agreement by the applicant — makes such a condition arbitrary and unsupported by the record.”
Arguing for those conditions and more, Citizen’s Warehouse Action Group attorney C. Michael Gan wrote that the conditions proposed by the Board and his client “further reflect the Court’s decision to have the application’s deficiencies addressed through conditions of approval.”
Gan urged the approval of a proposed condition amendment requiring a new application if the B9 property is used as part of another development application. He argued that another warehouse development – MCS Franklin II, which is still in its nascent stages – would have to use the B9 property for access to Schoolhouse Road.
“The B9 Schoolhouse and MCS Franklin II proposals are not two separate projects but parts of a single, interdependent plan,” Gan wrote. “Applicant had been aware of, consented to, and was a signatory to another proposed application for a 621,000 square foot warehouse on the adjoining property, which requires the use of this property for access to Schoolhouse Road.”
“It is wholly a reasonable request as a condition of approval that if Applicant seeks to use the subject property as part of any application, including for access and egress for any other properties, that this will be deemed a major modification and require a new site plan application to be submitted with the proper public notices,” Gan wrote.
Gan also argued that the B9 stormwater management plan was deficient because soil tests used as a foundation for the plan were taken at the wrong time of the year, as per the New Jersey Stormwater Best Management Practices Manual.
He said that a condition for approval should be added that requires and new stormwater management plan, and soil tests taken in accordance with the manual.
Third, a condition requiring decibel levels at the property lines be recorded should be amended to require a noise study be conducted before construction is completed, Gan wrote.
Testing, Gan wrote, “would present effectively a contour map of noise and it would be able to determine what impacts the operations would have on the adjoining properties.”
A fourth condition that allows for a payment-in-lieu of replacing trees removed during construction should be changed to not allow for that payment, Gan wrote.
“During the hearings and on appeal, Applicant confirmed that it would meet all requirements
for tree replacement on site,” Gan wrote. “There was no testimony or documentary evidence that even suggested that it would be impractical to replace trees on the removal site.”
“Condition 21 should not include any option for any trees to be addressed via payment-in-lieu, as there is no finding that can be made from a review of the record that tree replacement on-site is impractical,” he wrote. “Therefore, Condition #21 should be amended to simply require that the tree replacement requirement shall be one thousand forty-one (1,041) trees, as calculated by CME, and that the Applicant shall revise its plans to have all 1,041 trees replaced on-site.”
Gan also argued that the two conditions challenged by Link Logistics are “reasonable conditions of approval appropriately tailored to address concerns raised during the hearing.”
Both Gan and Planning Board attorney Eric Bernstein asked that for oral argument on the questions.
Judge Mennen has scheduled a Case Management meeting at 2:30 p.m. December 18.
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