Never Leave It In The Hands Of The Judges

This letter also appears on Middletown Patch:

This expression, more commonly used in a boxing ring is also true in a courtroom in Freehold. Judge Lawrence M Lawson reversed the denial by the Middletown Planning board for construction of a White Castle restaurant in Port Monmouth on March 12, 2013. After reading legal briefs submitted by White Castle and Middletown Township, oral arguments by both attorneys and a review of evidence submitted to the court at the hearing on February 21, 2013. It all came down to one single word “IMPRACTICABLE”.

The definition of impracticable is: “incapable of being performed or accomplished by the means employed or at command”. 

(Final White Castle site plan)

This was the core issue that Judge Lawson based his reversal of the Planning board’s denial for the White Castle application. It all revolves around one of the townships ordinances that they did not comply with. There are actually 18 but this one ordinance is the reason the township attorney cited in the resolution to deny. Ordinance is #16-622 D-9 and it states:

“Parking lots or unloading areas of commercial, business, or industrial uses abutting residential uses shall provide a landscaped buffer screen at least fifty (50') feet wide on the perimeter of all parking or loading areas”.

Simply, parking spaces for commercial properties need to be 50 feet away from the property line of a residential home. White Castle originally gave 10 feet and eventually, through comments and direction of the Planning board, increased it to 24 feet. The board inquired if 8 or so of the 21 parking spots could be moved to another area on the property to eliminate the request for the exception to 16-622 D-9 and comply with the ordinance. White Castle’s engineering expert, William Stevens-Vice President of Professional Design Services in Lakewood NJ after being questioned by board member Kevin Settembrino at the March 7, 2012 planning board meeting testified that:

“Parking could be provided on the easterly portion of the site. That could be done”

At the same meeting White Castle’s professional planner, Ian Borden-President of Property Professional Design Services in Lakewood NJ testified:

“There’s eight parking spaces along the rear of the site and possibly one or more on the western parking spaces toward the southern portion of the site. If those were relocated to the eastern portion of the site, we would conform”.

Mr. Jason Greenspan, Director of Planning for Middletown Township, during a discussion with Mr. Borden about the distance between the relocated parking spots and the restaurant commented:

“So that distance is probably about .05 of a mile?”

Mr. Borden replied:

“I think it’s not really so much what a fraction of the mile it is. I think it’s more what’s convenient for the use”

Again the definition of impracticable is: incapable of being performed or accomplished by the means employed or at command. 

The criteria the judge must use to reverse the Planning Boards decision is that they acted arbitrary, capricious or unreasonable towards the applicant (White Castle). The movement of 8 or so parking spots that the applicants own experts testified could be done is somehow IMPRACTICABLE? How is the refusal of White Castle to move those parking spots considered arbitrary, capricious or unreasonable on the Township of Middletown? In the publication of Judge Lawson’s ruling he states:

“In considering the testimony at the hearings, and the exhibits presented to the Board, this court finds that the Plaintiff did, in fact, prove that compliance with the site plan requirements is impracticable”.

When both the applicants engineering and planning expert testify the parking can be moved it cannot be IMPRACTICABLE (incapable of being performed or accomplished by means employed or at command).

The denial was the correct legal decision by the Planning board based on the evidence that was presented by White Castle. The judge decided that White Castle’s “convenience” not to relocate parking spots is more important than the Township’s right to govern against overdevelopment and negative impacts on its community. The Planning board has authorized an appeal to overturn Judge Lawson’s ruling. I want to applaud them for fighting for everyone in the community.

There are many issues with White Castles plan but overdevelopment is the primary issue that affects everyone who lives in the area (See Photo). As you can see the entire lot is 1.67 acres because of the combination of 5 lots that created this jigsaw puzzle of property. Only 0.70 acres is used for the building, parking lot and drive thru service. The entire front yard is a storm water basin designed to spill onto Highway 36 during a storm event. The entrance is located within an acceleration lane about 100 feet from the entrance ramp to HWY 36 off Main St. These are the issues where they DO NOT COMPLY with Middletown’s ordinances. Local residents are still opposed to this development. All we ask is for White Castle to comply with all of Middletown’s building codes.

Shannon Ecklof

Chestnut St

Port Monmouth