Wawa carried to 9th Planning Bd. meeting Attorney claims that application should be before Zoning Board BY DANIEL HOWLEY Staff Writer An attorney representing objectors to a proposed Wawa convenience store on Route 35, Eatontown, called into question aspects of the plan this week that could make a year of testimony on the application null and void. FILE PHOTO Wawa Inc. is seeking approval to redevelop the Eatontown Roller Rink site on Route 35 as a convenience store/gasoline station. At the April 14 Planning Board meeting, which marked the eighth meeting to be held on the Wawa application, attorney James Gibbons of the Pompton Plains-based firm Azrak & Associates made his first appearance before the board. Gibbons is representing nine residents who pooled their money to retain representation to fight the application. Gibbons claimed at the meeting that applicant Wawa Inc.'s plan is inaccurate due to inexact measurements given for the setbacks at the proposed site. "Unless the plans have been changed, the setbacks, and therefore the number of variances that you are in fact considering, are in fact inaccurate," Gibbons said at the meeting. The board members were unable to determine if Gibbons' claims were true or false, and moved to carry the meeting to June 9 to allow for time to look into the matter. Gibbons said at the meeting that the application for the proposed 24-hour convenience store and gas station at the former site of the Eatontown Roller Rink should not be before the Planning Board, Gibbons explained that the applicant is seeking a variance to allow the construction of a gasoline filling station within 200 feet of residential property and within 2,000 feet of another gas station. He said the variance is a use variance and not a bulk variance, as previously determined by the Planning Board. As a result of the claim, Gibbons said that the Planning Board is not the proper body to hear the case and that it should be turned over to and reheard before the borough Zoning Board of Adjustment. According to Gibbons, a site plan presented by Wawa Inc. several months ago called for a 50-foot setback for the site, and he said it should have actually called for a 70-foot setback. More than a year's worth of testimony on the plan should be thrown out, according to Gibbons, who said the setbacks presented by the applicant fail to take into account a 20-foot buffer that must be included at a site adjacent to a residential zone. "The thing is, the ordinance requires to add the buffer zone against a residence to the setback," Gibbons said. "Now [the applicant] just avoids it. They put it inside the 50-foot setback, but it has to be in addition to the setback. At least that is what the ordinance says. "Instead of 50 feet along Clinton Avenue, it should be 70 feet. On the other side, instead of the setback being 35 feet, it is supposed to be 55 feet," Gibbons said. Peter Falvo, attorney representing Wawa Inc., said he is displeased that the application is being carried to a ninth meeting. "I think my client's rights to due process are being abused now, based upon the fact that we presented our case, they started their case, now all of a sudden they want to reopen the whole case," Falvo said. Planning BoardAttorneyMarkAbramson rebutted the claims made by Gibbons. "Our zoning officer [Peggy Ciok], sitting here, has made the determination of what variances are required." "What if she is wrong?" Gibbons asked. Because residents retained Gibbons approximately one week prior to Monday night's meeting, Ciok was unable to review the claims about the setback. As a result, Planning Board Chairman Paul Kirzow called for the meeting to be adjourned early and carried until June. According to Gibbons, the additional 20-foot buffer will reduce the amount of developable land on the property. If the claims are correct, Gibbons said, the architect for Wawa Inc. will have to create a new site plan. Gibbons also questioned the Planning Board's jurisdiction over the Wawa application. Wawa Inc. is seeking a variance to an ordinance that restricts the construction of a gas station within 200 feet of a residential property and within 2,000 feet of another service station. Such a variance should be considered a use variance, according to Gibbons, who said that under the Eatontown Municipal Code, an applicant seeking a use variance must appear before the Zoning Board of Adjustment. Abramson said he disagrees with Gibbons. "I think that it is a use that is permitted in the zone, and if they can't meet all of the other requirements, they need a variance," Abramson said. According to the borough's master plan, the proposed site for the Wawa is identified as a B-2 business overlay zone, and allows for the construction of gas stations. "When we started this case, the issue of jurisdiction was raised and it was found that the Planning Board had jurisdiction," Falvo said. "The proximity ordinance, as I interpret it, is a general ordinance and not a specific ordinance," Falvo said, "and as such, a general ordinance applying to all zones is within the [jurisdiction] of the Planning Board to grant a variance. "As to the provision that the use is specifically prohibited, I respectfully disagree," Falvo said, continuing, "I believe the proximity ordinance was discussed not only with the board attorney but also with the municipal attorney. "Through the course of discussing those cases, the issue of whether or not this is a use variance was never raised. It is my opinion that jurisdiction is vested in this board to determine this application," Falvo said.