The owner of the store had sought a variance for an expansion and signage, but was derailed by a last-minute change in the noise ordinance. (Click to enlarge)
By JOHN T. WARD
The Red Bank planning board’s rejection of a proposal to turn a Welsh Farms convenience store into a 24-hour 7-Eleven has triggered a lawsuit.
Dina Enterprises, owner of the East Front Street store, filed suit in state Superior Court in Freehold August 8, claiming the board kowtowed to public opposition and exercised “palpable abuse of its discretionary authority” in rejecting an expansion variance in May.
The borough has not yet answered the lawsuit.
Dina’s application to the borough in late 2011 sought approval for a 300-square-foot rearward expansion of the existing store, to accommodate a refrigerator, and lighting. The filing, however, generated strong opposition from neighbors, who claimed it would generate noise, light pollution and litter, and would be a target for robbers.
The lawsuit is expected to hinge at least in part on records from 1975, when town authorities held hearings and approved the creation of a convenience store and gas station at the location, at the corner of Spring Street.
At issue is whether a notation about hours of operation on a document entered in evidence during the 1975 was intended to impose a closing time on the business. Dina attorney Philip San Filippo contends it did not, as there is otherwise no mention of hours of operation in the minutes of board hearings.
Nor did the resolution of approval, which typically lists conditions that land-use boards impose on applicants, make any mention of the hours the business could operate, he contended at hearings earlier this year, and now in the lawsuit.
The filling station operated there until 2005, when the pumps were removed.
In the midst of hearings, the borough council introduced and passed a change to the noise ordinance that barred retail businesses located within 100 feet of a residential zone from from operating between 11 p.m. and 6 a.m. unless they already did so.
That change constituted “commercial discrimination” against Dina, San Filippo contends in the lawsuit, because it did not apply to a WaWa store on North Bridge Avenue. He called it “inverse spot zoning.”
The board’s subsequent denial, the lawsuit claims, “demonstrates a preoccupation with, and deference to, public opinion rather than the unrefuted expert testimony of the plaintiff’s witnesses.”
