Mahwah December 15, 2010 THE VILLADOM TIMES IV • Page 7 Pilot service station plan prevails in court By Frank J. McMahon For the second time, Superior Court Judge Joseph Conte has affirmed the Mahwah Zoning Board of Adjustment’s January 2010 resolution to approve a conditional use variance for Pilot Corporation. The company plans to renovate and upgrade its Route 17 truck stop into service station. Conte’s Nov. 30 written decision was issued following a Nov. 19 bench trial of the lawsuit filed by Parents for Safety. That group challenged Pilot’s plan before the zoning board and the board’s approval of the variance. Conte previously affirmed the board’s variance approval in an October 2010 opinion in a lawsuit filed by Paks Fast Service, Inc., Pilot’s economic competitor, which owns the Valero Service Station north of the Pilot site. “Obviously, we are quite pleased that the court again found that the Mahwah Zoning Board properly granted a conditional use variance and site plan approval for the Pilot service station,” said James Lott, the attorney for Pilot. “Seeing as the station is now open and operating, it is clear that the Pilot service station is, in fact, safer, cleaner, and better for Mahwah.” In the recent lawsuit, Conte concluded that Parents for Safety had not presented adequate reason to overturn the zoning board’s decision. “Based on the submissions of the parties and the review of the record before the zoning board, this court finds that the zoning board did not act arbitrarily, capriciously, or unreasonably,” Conte stated. Parents for Safety asserted that the board abused its discretion and acted arbitrarily, capriciously, and unreasonably because Pilot failed to justify the grant of a conditional use variance by the enhanced quality of proof standard required by the New Jersey Supreme Court in 1987 in what is known as the Medici decision. The group also claimed the board ignored the evidence presented by their hazardous materials expert which demonstrated that Pilot’s plan was unsafe and a risk to Mahwah’s school children. Pilot argued that its interpretation of case law suggests that the enhanced quality of proof standard does not apply to requests for conditional use variances according to the 1994 Supreme Court decision known as Coventry Square. Pilot claimed the standard of proof required for granting a conditional use variance is governed by the Coventry Square decision. Conte agreed, stating in his decision that the Supreme Court, in its Coventry Square decision, emphasized that applying the enhanced quality of proof standard to conditional use variances was inappropriate. On the hazardous materials issue, Pilot maintained that, under New Jersey case law, the zoning board is free to accept or reject the testimony of the Parents for Safety’s hazardous materials expert based on his training and expertise and the belief that his testimony was outside his area of expertise. Pilot said the board correctly rejected that testimony. Conte agreed. He said his review of the transcripts of the board’s public hearings revealed that a substantial portion of that expert’s testimony was outside his area of expertise. Conte noted that the board has limited jurisdiction to consider air pollution and deferred to the federal and state air pollution control agencies that preempt the board’s jurisdiction in that matter. The board also imposed conditions that required the removal of underground storage tanks and any contaminated soil in accordance with New Jersey Department of Environmental Protection regulations. The judge also found that the board properly determined that the purpose of the ordinance to increase the buffer between service stations and facilities such as schools from 200 feet to 500 feet was not offended by the granting of the variance. He noted that the variance requires the separation of the Pilot site and the nearby school property by fencing, landscaping, and the closure of the Ridge Road access to the Pilot site. In addition, Conte noted that the ordinance allows the owners of properties that became non-conforming by the adoption of that ordinance to apply to the zoning board for a variance. The ordinance in question was adopted during the public hearing of the Pilot plan. Suzanne Curry, a longtime opponent of the Pilot plan, and supporter of Parents for Safety, said she was disappointed with the decision, but believes the group’s opposition to the Pilot plans achieved some benefits. “Though we would have preferred another decision and we still see validity in the arguments in the appeal,” Curry said, “the current site is not what Pilot envisioned. Rather it is a smaller, less intense truck stop facility than originally planned and because of the parents’ work, the support of the residents, and the efforts by the town, there are now eight truck parking spots instead of 48, no showers, no video arcade, fewer pumps, no Ridge Road access, and no overnight parking, which our town can enforce. “We may not have won the war, but we won a lot of battles. 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