Villadom Times Weekly Newpaper Online-January 19, 2011 Issue

Mahwah January 19, 2011 THE VILLADOM TIMES IV • Page 7 Paks Fast Service appeals Pilot court approval by Frank J. McMahon Paks Fast Service, Inc. has filed an appeal in the Appellate Division of Superior Court challenging the Oct. 12, 2010 judgment by Superior Court Judge Joseph S. Conte which affirmed the Mahwah Board of Adjustment’s approval of Pilot Corporation’s plan to renovate and upgrade its truck stop site on Route 17. Pilot has completed the renovation and upgrade of its site, and is currently operating a truck and automobile fueling service station and convenience store on the site. Kevin Moore, the attorney for Paks, explained that his arguments in the appeal will be essentially the same as the arguments he presented to Judge Conte, but narrowed a bit to show how Paks believes Judge Conte erred in making his decision the way he did. Moore declined to elaborate any further. During the trial of the Paks lawsuit, Moore claimed the zoning board’s decision to grant the use variance was arbitrary, capricious, and unreasonable. He explained at the time that Pilot did not satisfy the necessary criteria to gain approval of the application, and he cited township ordinance 1606, which requires service stations to be 500 feet from a school. Moore asserted the township council knew when they adopted that ordinance that Pilot planned to close the Ridge Road access to its site and to provide a landscape buffer along Ridge Road, so the council’s intent was to prohibit service stations from being located within 500 feet of a school, but the zoning board ignored that evidence. He also argued that the council’s intent in adopting ordinance 1606 was misconstrued when Pilot said the council did not intend to prohibit service stations within 500 feet of a school but, instead, to require such applicants to obtain a conditional use variance from the zoning board. The attorney claimed the council’s intent was to prohibit service stations within 500 feet of a school, and Mahwah High School in particular. Pilot’s attorney, James Lott, argued that the council intended to impose a proximity requirement as a condition on service stations if they are within 500 feet of a school and, in this case, the zoning board reconciled the deviation from the proximity requirement with the council’s determination that the condition should be imposed on all conditional uses in the township. Maintaining that the language of the ordinance was “clear and unambiguous,” Lott argued that Moore’s interpretation of the council’s intent was incorrect because he claimed the council sought to create a spatial separation between service stations and certain uses that would be effective throughout the township. Lott argued that, if the council intended to prohibit service stations within 500 feet of a school, it would have expressly prohibited that type of use. The ordinance at the center of the arguments before Judge Conte was adopted by the township council in February 2008 while Pilot was before the township’s planning board with an application seeking site plan approval to renovate its site. Conte noted that the ordinance proposed to place a condition on service stations that they not be located within 500 feet of certain public uses, including schools. When that ordinance was adopted, Pilot decided not to continue with its application before the planning board, and instead filed a new application before the zoning board in June 2008. That application proposed to demolish the existing buildings on the site, build a 4,282 square foot convenience store, and change the truck stop into a service station for trucks and automobiles. The new application contained a proposal to close the Ridge Road access to the site, remove the existing truck scale, and provide a fence and landscaping along Ridge Road to prevent pedestrian access to the site. In Conte’s affirmation of the zoning board’s approval of Pilot’s plan, he stated that he was not convinced that the board’s decision to grant the use variance was arbitrary, capricious, or unreasonable based on his review of the resolution and the applicable transcripts of the hearings before the zoning board. Conte further found that the board had determined that the physical separation of the two uses that included buffering, fencing, landscaping, and elimination of the Ridge Road access was consistent with the legislative intent of ordinance 1606 to reduce the flow of traffic in the vicinity of certain uses out of concern for public safety. He also made note of the fact that the zoning board relied on factors set forth in the 1994 State Supreme Court’s Coventry Square decision, which addresses the issue of conditional uses versus prohibited uses. Conte concluded that the evidence in the case did not lead to a finding that the council intended to prohibit all gas stations within 500 feet of schools, or to prohibit Pilot’s development of its property. He pointed out that the council discussed at length the fact that those existing gas stations which would become non-conforming as a result of adopting ordinance 1606 would have to seek variances from the zoning board. Conte found that Moore had not presented adequate reason to overturn the zoning board’s decision to grant a use variance to Pilot, and that the zoning board did not act arbitrarily, capriciously, or unreasonably. �� ✤ �� ✤ �� ✤ �� ✤ �� ✤ �� New Year, New Floor! �� Year’s New FLOORING SALE! January 3 -31 rd st Trade in YOUR Old Floor FOR A Beautiful New Floor! FREE Carpet & Pad Removal, & Disposal with the Purchase of New Carpeting! Up to 15% Off! Free removal up to 50 square yards (not including steps). Cannot be used on prior sales. 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