By JOHN T. WARD
The spillover crowd that was treated to an hour of arcane legal arguments over a proposed Dunkin’ Donuts in Fair Haven last month may soon get a free refill.
Lawyers for two objectors have filed appeals over whether the planning board has jurisdiction to hear the coffee shop’s application, leading to a detour in the case, redbankgreen has confirmed.
Some commenters claim the store, to be built in the recently remodeled Acme shopping center on River Road, would jam the parking lot with vehicles, create safety issues for pedestrians and devalue the small-village charm of Fair Haven.
Last month, the turnout for the first and only planning board hearing on the proposal was so great that officials had to move the meeting from the council chambers to the gym of the Sickles School a block away.
Now, the continuation of the hearing, scheduled for March 19, has been cancelled. Instead, lawyers for Grange Avenue resident Tracy Cole and Battin Road resident Andrew Reger will try to persuade zoning board members on April 4 that they, and not the planning board, should be handling the application.
At issue in the appeals: whether the Dunkin is a “category 2” restaurant under local ordinance, which is permitted, or either a category 3 or 4 restaurant, both of which are prohibited. If successful, the appeals would force Fair Haven Retail LLC, owner of the shopping center, to pursue a variance, which carries a higher burden of proof than a change of use.
Last June, zoning officer Nicholas Poruchynsky found that the store is a category 2 permitted use, but would need approval for a change of tenancy from retail to restaurant. That meant the business had to demonstrate only that it “fits within” the location in terms of trash collection, signage, traffic circulation and related safety considerations, planning board attorney Douglas Kovats told the audience at the February 19 hearing
But in their appeals, Ron Gasiorowski, a Red Bank lawyer representing Reger, and lawyer Michael Convery, representing Cole, dispute Poruchynsky’s determination.
Convery’s appeal, filed February 15, prior to the initial hearing, maintains that Poruchynsky “mis-classifed” the Dunkin’ as a category 2 restaurant. Here’s his synopsis of the categories:
Convery maintains that Dunkin’ should be classified as a drive-thru, even though there’s no driver-serviced window, because the majority of purchases are intended for takeout. It also fits the description of two categories prohibited under borough zoning law, and thus needs a variance from the zoning board, he argues.
Convery’s filing includes copies of Dunkin’ Donuts corporate materials touting itself as a fast-food takeout business.
In an appeal filed Monday, Garsiorowski makes similar claims. He also argues that February 19 testimony by the shopping centers’ traffic expert acknowledging the majority of sales would be takeout orders proves that an earlier filing with the borough by the shopping center was “false.”
Gasiorowski and Convery spent the first hour of the three-hour planning board hearing trying to persuade the board that it didn’t have jurisdiction. But board chairman Todd Lehder allowed the hearing to go forward. Lehder, a land use lawyer, is also the chairman of the zoning board.
Michael Bruno, who represents the shopping center, could not be reached by redbankgreen for comment late Thursday. At the February 19 meeting, he told the board that Gasiorowski and Convery were “trying to create an objection so they can delay, hinder, try to convince you that there is some position to deny this application. We’re simply trying to put a new tenant into a permitted use.”
Bruno also said the objectors had created a “circus” around the application, prompting boos from the audience. He later retracted the remark.
Sequeira and family members also own Dunkin’ Donuts shops in Red Bank, Shrewsbury and Lincroft.