W.L.B. mum on appeal of ruling on MU plan
Mayor puts off talk of cost of lawsuit against zoning board
BY SUE MORGAN
Staff Writer

WEST LONG BRANCH -The borough's unsuccessful legal battle to preserve the former Kilkare Farm from Monmouth University's building plan is a taboo topic for now.

So too is any discussion about how much taxpayer money was paid to two lawyers, both employed by the borough yet representing different entities, to argue the case before state Superior Court Judge Alexander D. Lehrer, who ultimately decided the university's plans should go forward.

Six days before Election Day and eight days after Lehrer upheld the West Long Branch Zoning of Adjustment's decision to allow the university to construct institutional-type facilities on the empty farmland, borough officials would not talk about whether or not they would challenge Lehrer's ruling at the next level.

Before talking about any further appeals of the zoners' granting the use variances to the school or the costs associated with the case decided by Lehrer on Oct. 24, council members had to comb through the judge's 42-page ruling and listen to a two-part audiotape of the courtroom hearings, Mayor Janet Tucci said at the governing body's Nov. 1 meeting.

"We're not in a position tonight to answer questions about whether or not we will appeal [Lehrer's ruling]," Tucci told about 50 persons, including residents and borough employees, that had gathered for the last public meeting before Election Day

Nor could the governing body provide any cost estimates for the legal bills to be submitted by Borough Attorney Gregory Baxter and Zoning Board Attorney Thomas Klein, who argued the controversial case from opposite sides, Tucci said.

"We might know that by the next meeting," she said.

The council's next public meeting is scheduled for Dec. 6. and the last one for the 2006 calendar year is set for Dec. 20.

When a few residents pressed for a range of costs, Baxter reiterated his earlier estimates of $5,000 to $10,000.

The total cost would be "more on the low side," Baxter said.

Nonetheless, Tucci's squashing of any discussion on the state Superior Court appeal, in which the Republican-led council took legal action against its own appointed zoning board, evoked sighs from some in attendance.

Some of those sighs came from residents who objected publicly last January when the council voted 5-1 along party lines to appeal the zoners' greenlighting of the university's use variance application five months before.

Most of those residents had objected to using taxpayer funds to pay both Baxter and Klein to represent opposing sides - a move that many said amounted to the town suing itself.

However, Tucci and her GOP colleagues on the council chose to pursue the action because they believed that the zoners had violated the borough's master plan by permitting the university to construct its institutional facilities at Kilkare, a tract owned by the school, but located in a residential R-22 zone.

By permitting the university to build, even on its own land, in a residential zone, the zoning board had usurped the authority of the council, which votes on the town's master plan, they argued.

The zoners' approval, rendered after 19 months of hearing testimony on the lengthy application, came on Aug. 31, 2005.

Because of the court action, the university has not begun constructing six tennis courts, a 21-space parking lot, and a detention basin that it plans for the Kilkare land, situated between Beechwood and Hollywood avenues.

As part of the same application, the university sought and won use variance approvals to construct an on-campus, 196-bed dormitory and 126-stall parking lot near Cedar and Pinewood avenues and also located in the R-22 zone.

The larger parking lot would face the Pinewood Avenue home of Joseph and Pamela Hughes, who hired Long Branch attorney James Siciliano to present their objections to the application during the long course of hearings.

After the zoners approved the entire application, it was Joseph Hughes and some of his neighbors who suggested that the council join them in appealing the decision in state Superior Court.

Hughes, president of the West Long Branch Coalition of Neighbors, a grassroots group of residents opposed to the university's purchase of land and building in the R-22 zone, chose to appeal the entire application including the dormitory and the Kilkare portion.

In Lehrer's courtroom, the council only appealed the part of the application pertaining to the Kilkare tract.

Immediately after Lehrer issued his ruling, Hughes announced that he and his wife will appeal again, this time at the appellate level.

That appeal must be filed within 45 days of Lehrer's announced decision, Hughes said last week.

Knowing that an appeal by Hughes or others could be forthcoming, university officials are still being cautious about breaking ground for the new facilities, according to Petra Ludwig, a university spokeswoman.

"The university is ready to move forward with the project, but understands that the other parties may choose to challenge Judge Lehrer's decision," Ludwig said in an e-mailed statement. "As always, the university will follow the laws that apply to such circumstances."

Although Tucci and the council have not addressed the judge's ruling, Hughes praised their support to date.

"I am certain the council that we have will do whatever is best for West Long Branch," Hughes said. "You can't fault the town for trying to protect open space and our master plan."

Further appeals should not be construed as animosity toward the university and its supporters, but as a means of protecting the school's neighbors' property values and the town as a whole, Hughes added.

Aside from the issue of the master plan, Hughes, himself a practicing attorney in North Brunswick, had pointed out that a majority of the zoning board members who voted in favor of the university's application are themselves graduates of the school.

That association presented a conflict of interest and should have prompted those zoning board members to recuse themselves from hearing the application, according to Hughes.

However, Klein ruled differently at the onset of hearings in 2004. Lehrer later upheld that opinion.

The judge also ruled that the tennis courts and other facilities fit the character of the residential neighborhood adjoining a university campus and provided "an excellent non-intrusive transition" of the existing uses.