By JOHN T. WARD
In yet another twist in what’s proving to be its most tortuous case in years, the Red Bank planning board voted Wednesday to halt testimony about a proposed Hampton Inn so an objector can press his case that the wrong body is hearing the matter.
Lawyer Ron Gasiorowski, representing objector Stephen Mitchell and other, unnamed parties, persuaded the planning board to kick a question about height restrictions and jurisdiction over to the zoning board, despite vehement objections by hotel attorney Marty McGann.
“You have jurisdiction. You have a right to hear this thing,” McGann told the board. “I have an application, and I want to proceed.”
Rbank Capital LLC proposes to build a six-story, 72-room hotel overlooking the Navesink River at the junction of the Route 35 Cooper Bridge and Rector Place, on the site of a long-vacant Exxon station. Numerous hearings on the plan have been held since August without a wrap-up in the case.
Gasiorowski has already filed two lawsuits against borough entities, both of them pending in state Superior Court in Freehold.
One challenges, as arbitrary, a decision by the borough council to “correct” what officials said had been an earlier mistake: including the property in an overlay zone meant to preserve old homes on Rector Place.
The other claims the zoning board made a procedural error last May, when it ruled that the hotel proposal should be heard by the planning board. The board’s decision overruled zoning officer Donna Smith Barr, who had previously determined the project would needed a use variance and thus should go to the zoning board.
Now, following on a question that dominated the last hearing, in December, Gasiorowski said the zoning board should make the call about whether a borough height restriction is being tested, which he said would make the entire application a zoning board matter.
Now, in his request for an interpretation, Gasiorowski is asking the zoning board to referee a key question: how tall can the building be before it requires a use variance?
The question of which board hears the application is crucial because the hurdles are higher for applicants at the zoning board. A use variance cannot be approved by a mere four affirmative votes, but requires a supermajority of five or more.
Gasiorowski maintains that a provision in the borough ordinances limits any structure in the waterfront development zone, in which the hotel property sits, to 50 feet above the midway point between the center of the river and the nearest right-of-way â€“ in this case, Rector Place. The Hampton Inn would come in at 82 feet tall, according to earlier testimony.
McGann, however, said he was prepared to prove that the ordinance does not apply to his client’s property.
But planning board attorney Michael Leckstein and Mayor Pasquale Menna, as a board member, cut him off, telling him that the planning board would await a decision from the zoning board.
“The [state] Land Use Act sets forth that interpretations are to be made by the zoning board of adjustment,” Leckstein replied. And if the zoning board agrees with Gasiorowski, “then we would not have jurisdiction.”
No date has been set for the zoning board to take up the question, and the planning board tentatively penciled in a resumption of its hearings for March 5.
That night, the board is also scheduled to hear a request to convert the Welsh Farms store on East Front Street to a 7-Eleven with a larger footprint and 24-hour operation. The start of that matter was delayed at the request of the applicant, said Leckstein.