Mahwah October 6, 2010 THE VILLADOM TIMES IV • Page 7 Judge Conte reserves decision on Pilot case by Frank J. McMahon After listening to oral arguments from lawyers for both sides in the lawsuit brought by Paks Fast Service, Inc. against the Pilot Corporation and the Mahwah Board of Adjustment, Superior Court Judge Joseph S. Conte reserved his decision, which he will issue in writing to all parties involved. In January, Paks sued Pilot and the zoning board to challenge the board’s November 2009 decision to grant a conditional use variance to Pilot, which permitted the renovation of the corporation’s truck stop site into a truck and automobile fuel service station. Paks claims that decision was arbitrary, capricious, and unreasonable. At the recent trial, Paks attorney Kevin Moore explained that his client’s lawsuit was about one narrow issue, and that is whether Pilot met the requirement of the state’s land use law to obtain a conditional use variance. Citing the court decision in the well known land use case, Coventry Square v. Westwood Zoning Board of Adjustment, Moore argued that Pilot had to show that the grant of the conditional use variance for its specific project at the designated site was reconcilable with the township’s legislative determination that the conditional use standard should be imposed on all conditional uses in that zoning district, specifically, that a service station could be located within 500 feet of certain uses including schools. Moore told Conte that, in February 2008, the Mahwah Council amended the township’s conditional use ordinance to make it clear that a facility like Pilot’s proposed truck and automobile fuel station and convenience store should not be developed, and, by granting Pilot its conditional use variance, the zoning board not only acted arbitrarily, capriciously, and unreasonably, but it also usurped the legislative function of the township council. Moore explained that township ordinance #1606 amended Mahwah’s code to provide that gasoline stations and vehicular repair service shops were prohibited within 500 feet of a school, regardless of whether they were in the same block or along the same street. “The Mahwah Council knew when it adopted ordinance #1606 that it was prohibiting Pilot’s truck stop, gasoline service station, and convenience store on Pilot’s property,” Moore told Conte. He argued that the only testimony presented by Pilot in support of the granting of the conditional use variance was by Pilot’s professional planner, Daniel McSweeney, who testified that Pilot had achieved physical separation of the site from the Mahwah High School on Ridge Road by way of a fence, a landscape buffer, and the closure of the Ridge Road access to the Pilot site. He said those were the only findings the zoning board used as the sole basis for its decision that Pilot had satisfied the requirement to receive a conditional use variance. “Thus, it was impossible for the zoning board to reconcile its grant of the conditional use variance to Pilot with the township council’s legislative determination in ordinance #1606 that gasoline stations should not be located within 500 feet of schools in the B40 highway business zone in Mahwah,” Moore said. “The zoning board chose to ignore the undisputed evidence before it and make findings that were unsupported by the facts and the law.” Zoning Board Attorney Ben Cascio advised Conte of two points concerning the zoning board’s decision. One was that the board did, in fact, analyze the township council’s intent in ordinance #1606 and found that Pilot did meet the provisions of that ordinance by providing buffers to separate the corporation’s site from the school property. The other point he made was that, if the council intended to prohibit Pilot’s proposed use, it would have done so by a separate ordinance and not just by amending the conditional use ordinance. Conte asked when the high school was built, and Cascio advised it was built in 1960, many years after the gasoline station at the Pilot site was built. James Lott, Pilot’s attorney, told Conte the reason the township council amended its “proximity” ordinance was because it recognized that, due to the increase in population and vehicular traffic, it was in the best interest of the public to create a 500 foot separation between service stations and schools. He argued that the zoning board had to reconcile whether a service station could exist within that ordinance and it found, after 22 public hearings and 60 hours of testimony, that Pilot’s use of fencing and landscaping and the closure of the Ridge Road access to the Pilot site was the functional equivalent of the 500 foot requirement in ordinance #1606. Conte asked Lott how far the Pilot site is from the school property, and he advised that it is about 60 to 70 feet to the property line, and some portion of the high school building is within 200 feet of the Pilot site. Then he asked if the 500 foot distance made a difference in the case, and Lott said it did not. “The zoning board of adjustment properly applied the law and carefully considered the testimony (during the public hearings) and they found the separation of the Pilot site from the school met the separation requirement of ordinance #1606,” Lott told Conte. “The zoning board of adjustment reconciled the use with the ordinance and so its decision was not arbitrary, capricious, and unreasonable,” Lott continued. “The decision of the zoning board has a presumption of validity and so it should be affirmed.” Pilot is nearing completion of the reconstruction of its site, and the contaminated soil has been remediated, the convenience store built, and the fuel station canopies constructed. The court has permitted Pilot to proceed with the construction at their own risk, as the new construction would have to be removed if the zoning board’s approval were reversed and upheld on appeal. 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