Page 4 THE VILLADOM TIMES IV • August 31, 2011 Mahwah Appellate court affirms Pilot zoning approval by Frank J. McMahon A three judge panel of the Appellate Division of the Superior Court of New Jersey has affirmed the Mahwah Zoning Board of Adjustment’s approval of the Pilot Corporation’s plan to renovate and upgrade its truck stop on Route 17. The panel included judges Jose L. Fuentes, Victor Ashrafi, and William E. Nugent. The appeal was argued telephonically on June 6, 2011 and decided by the panel last week. James Lott, the attorney who represented Pilot in the planning and zoning applications and in the subsequent lawsuits, voiced his satisfaction with the court’s ruling. “The court’s well-reasoned decision of this case is very satisfying,” Lott said last week. “The Mahwah Zoning Board conducted a lengthy and thorough investigation of Pilot’s application and ultimately made a decision that was both legally justified and in the best interests of the township. We are quite pleased that the court recognized the zoning board’s prudence and upheld its decision.” Zoning Board Attorney Ben Cascio was also pleased with the decision. “I’m glad we got it right,” Cascio said. He added that the obvious improvement in the condition of the Pilot site is the result of the zoning board’s approval of the use variance. Following the zoning board’s approval of Pilot’s plan in November 2009 and the June 2010 Superior Court denial of an application to restrain Pilot from proceeding with construction of the new facility, Pilot completed the renovation and upgrade of its site in September 2010. The company has been operating a truck and automobile fueling service station and convenience store on the site since then. Paks Fast Service, Inc., which operates a Valero gasoline fueling station a short distance north of the Pilot site and is a business competitor of the Pilot Cor- poration, opposed Pilot’s applications before the planning board and the board of adjustment. Paks filed a lawsuit in Superior Court following the approval of the Pilot application. When that lawsuit failed, Paks filed an appeal challenging the Oct. 12, 2010 judgment by Superior Court Judge Joseph S. Conte, which affirmed the board of adjustment’s approval of the Pilot plan. The panel of judges explained in their decision that Paks’ appeal was narrowly focused on whether the zoning board and the trial court correctly applied the criteria required for the granting of any variance under state law and that the granting of the variance was at odds with a restrictive zoning ordinance adopted by the township while Pilot’s application was pending. The panel affirmed Judge Conte’s decision after considering Paks’ argument and the factual record. The court’s written decision chronicles the application by Pilot to the planning board when the township’s zoning ordinance prohibited gas stations or vehicle repair shops within 200 feet of a school or certain other public facilities that were located along the same street and on the same block. The decision also details the denial of that application by the planning board without prejudice when Pilot declined to grant an extension of time for the planning board to review its application after that board reported favorably on a new ordinance introduced by the township council that increased the distance to 500 feet. The court also provides a record of Pilot’s subsequent application to the zoning board in August 2008 for a variance to deviate from the 500 foot restriction, the zoning board’s ultimate approval of Pilot’s development proposal in November 2009, and the 2010 Superior Court decision to deny Pak’s challenge to the variance. According to the panel’s decision, the crux of plaintiff’s arguments on appeal is that the zoning board failed to adhere to the decision of the township council when it adopted Ordinance 1606, placing a 500 foot restriction on the development of gas stations near schools. Paks contended the board was required to acknowledge that the council was aware of Pilot’s development application and had expressly adopted the ordinance prohibiting the intended use. The panel found that the zoning board did exactly what the Coventry Square Inc. v. Westwood Zoning Board of Adjustment case requires when considering Pilot’s application and granting the variance. The panel was referring to the zoning board’s resolution of approval, which found the site appropriate for the use notwithstanding the 500 foot separation between service stations and certain public uses because the modified site, the proposed landscaping, and the proposed fencing plan, would effectively buffer and screen the site from the neighboring properties and provide all of the benefits of the required or intended separation. (continued on page 17) Joe Giacchi Swing Trio to perform concert The “Joe Giacchi Swing Trio,” with Jess Gelber on piano, Ernie Lumer on clarinet, and Joe Giacchi on drums will perform at the Mahwah Public Library on Sunday, Sept. 11 at 2 p.m. Kate Manning will provide the vocals. This performance will take the audience down memory lane with a repertoire of great swing music. The program is free. Tickets and registration are not required. Seats are on a “first come” basis. Call (201) 529-READ or visit the website at http://mahwah.bccls. org/ for program information. The Mahwah Public Library is located at 100 Ridge Road.