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

White Castle Update: The Fight Isn't Over, Middletown Planning Board Intends to Appeal Judge's Decision

Since learning last week that the NJ Superior Court and Judge Lawrence Lawson, overturned the decision of the Middletown Planning Boards to deny the fast food chain White Castle from building a restaurant on an undersized lot located between Main Street and Wilson Ave., on highway 36 in Port Monmouth, I’ve been in contact with Chestnut Street resident Shannon Ecklof. Ecklof has been leading the fight against White Castle sliding into the lot that butts up to his back yard and wrote the letter, ”They can’t fit 10lbs of White Castle in a 2lb bag” that appeared on this blog back in March of 2012. He has informed me that he and his neighbors haven’t given up on their fight against the White Castle.


Shannon informed me that he and his neighbors knew of Judge Lawson’s decision on the day it was handed down last month and that their attorney attended the April 3rd meeting of the planning board in response to discuss it.

At the planning board meeting, their lawyer asked the board if they had any plans to appeal Judge Lawson’s decision. After a brief discussion, it was decided by unanimous vote that the planning board would appeal.
I was also informed that they (Shannon and others) have since met in the Mayor’s office, where they were told by mayor Scharfenberger, the township would not appeal unless they thought they had a good chance of overturning Judge Lawson’s opinion. They would not waste tax payer’s money fighting a lost cause because of public scrutiny over township spending, but they were confident in a positive outcome and an appeal should be forthcoming.

For Shannon Eckof and others that live in the vicinity of where the White Castle wants to build, the news that the township and planning board are planning to appeal is welcomed. As a matter of law (and common sense in my opinion), it would seem that the planning board was right to deny White Castle’s application, it just doesn’t make sense to cut corners in order to squeeze a site plan that would normally require a 3 acre parcel of land onto a lot half that size.

Depending on the courts, the appeal of Judge Lawson’s decision could take anywhere between 6 months to 2 years to be heard according to Ecklof’s attorney. So don’t expect to be driving into a White Castle location in Port Monmouth anytime soon, it could be awhile or not at all.

We’ll keep you posted.

White Castle Coming To Port Monmouth; NJ Superior Court Overturns Middletown Planning Board Application Denial

It looks as though White Castle will be "sliding" a restaurant onto a vacant piece of land between Main street and Wilson Avenue in Port Monmouth after all. After having their application denied by the Middletown Planning Board last year, White Castle System, Inc. appealed the decision to the New Jersey Superior Court and on March 26th of this year, the NJ Superior Court ruled in favor of White Castle and overturned the Middletown Planning Board.


The ruling by the Superior Court states that all preliminary and final site plan approvals, including site design waivers, to permit White Castle to construct and operate a  restaurant with a drive-thru on property has been approved by the court and can move forward.

It seems now that the area residents, who strongly opposed the construction of the White Castle, will need to hire their own attorney if they wish to continue their fight and appeal the decision of the Superior Court that will be built in their backyards.

Below is the notice of the Courts decision that appeared in the pages of the Asbury Park Press public notice section yesterday:

TOWNSHIP OF MIDDLETOWN

NOTICE OF DECISION PLEASE TAKE NOTICE that the Superior Court of New Jersey, by its Order dated March 26, 2013, resulting from an action entitled White Castle System, Inc. vs. Planning Board of The Township of Middletown, Docket No. MON-L-2139-12, reversed the April 4, 2012 denial by the Township of Middletown Planning Board of White Castle System, Inc.'s ("Applicant") application, and granted preliminary and final site plan approval, including site design waivers, to permit the Applicant to construct and operate a White Castle restaurant with a drive-thru on property located at 382 Route 36, Township of Middletown, Monmouth County, New Jersey, also known as Block 533, Lots 4, 5, 6, 7 and 15 as shown on the current Tax Map of the Township of Middletown. A copy of the Order with respect to the above matter is on file for public inspection in the office of the Planning Department located in the Town Hall, 1 Kings Highway, Middletown, New Jersey, during regular business hours (8:00 a.m. to 5:00 p.m), Monday through Friday. By: Price, Meese, Shulman & D'Arminio, P.C. Attorneys for Applicant, White Castle System, Inc. By: Reginald Jenkins, Jr., Esq. ($35.00) 721344
Public Notice ID: 20058532

Middletown Township Committee Meeting 5/7/12

This video is of the May 7 2012, Middletown Township Committee Workshop Meeting. At this meeting discussions took place regarding the capital budget and some upcoming shared services.

Other discussions that took place concerned an new ordinance governing the Historical Commission and the planning for the upcoming 350th birthday of Middletown in 2014, the establishment of an Econonic Development Committee, the tightening up of the standards that governs the establishment of fast food restuarants in town enlight of the recent planning board decision to turn down the White Castle application along route 36 in Port Monmouth and the Ideal Beach Improvement Project.





As a companion to the video, you can download a copy of the meeting agenda that contains the proposed resolutions and ordinances that were voted on or presented during the meeting. A box around an item is a link, bringing you further into the document to that resolution or ordinance. At the end of the resolution there will be a link bringing you back to the agenda. Attached to this agenda is also the monthly bill list, so that everyone can see how the Township is spending our tax dollars.

Planning Board Turns Away White Castle

The Middletown Planning Board turned down White Castle's application last night according to Middletown Patch.

This is good news for Shannon Ecklof and the other residents of Chestnut St. who fought against this application and who's houses would have butted up to the fast food restaurant.

Ecklof is quoted by Patch  as saying, "The board did the right thing. I wish I could say that this is over but for the next few weeks we have to worry about White Castle appealing the board’s decision. It would be a shame that the taxpayers would have to bear the legal cost to defend the township. Mr. Asadi (our attorney) is confident that they do not have legal grounds to win on appeal but that probably won’t stop them given the history of their actions to date. The front door was slammed but we will have to see if they try to back door this in."


I don't think the Ecklof's or their neighbors have to worry about White Castle appealing this decision, as Ecklof stated in a letter to this blog "They can’t fit 10lbs of White Castle in a 2lb bag" last week, there were many issues with White Castle wishing to build a restaurant at this location to begin with.  

They can’t fit 10lbs of White Castle in a 2lb bag

That is what the Columbus, Ohio-based fast-food chain is trying to do in Middletown, as some of the residents of Port Monmouth are becoming aware with White Castles 4th attempt to gain approval from the township planning board scheduled for March 7, 2012.

With each planning board meeting the laundry list of problems grows and grows. I and many other homeowners in the immediate area have attended the meetings in opposition of this type of over development in our community. The property White Castle plans to build is a 2000 SF restaurant  located on a vacant lot between Main St and Wilson Ave on Highway 36 right next to Iron Horse Motors. It’s a B3 (business zone) requiring a minimum of 3 acres for any commercial development but a conditional use exception requires only 1.5 acres for a fast food restaurant. The purposed building and parking area is squeezed into an area that’s only 0.7 of an acre, less than half the land required. The rest of the property they acquired to meet the 1.5 acre requirement is well over 100 feet away. White Castle cannot build anything related to the restaurant or operations on that part because of the peculiar size and shape of the lot they created.

A nail salon, dentist office or dry cleaner would need twice the amount of land then a fast food restaurant. It doesn’t make sense to allow this, considering the intensity of use that a fast food restaurant will generate. This is the only situation where a conditional use exception actually reduces the minimum acreage requirement for commercial development in Middletown Township.

The zone is the zone however, all we are asking is that White Castle respectfully conforms to all building requirements regarding buffers, landscaping, traffic and pedestrian safety according to the Township of Middletown, so we can all live together as neighbors. White Castle has no intention of conforming or addressing the community’s issues with their plan as I will explain.

A little about us:

My wife and I first got into this and hate to admit it, but we became NIMBYs (Not in My Back Yard) because we live directly behind the site on Chestnut St. We received notice of the application in late October via certified mail as we were in the process of trying to finishing a major addition to our home that we have owned since 1998. Obviously we are concerned about our quality of life with a 24 hour fast food restaurant literally in our back yard. The smell, the lights, the cars ordering from the menu board just feet away from where are children are sleeping at all hours of the night, the infestation of vermin because of food related waste in their dumpster. Faced with this most people would quickly become a NIMBY like us.

Even though these are all valid concerns they are not enough for the planning board to deny White Castle the right to build their restaurant if all the code requirements are met, which they are not.

Through the process this has become more of a community issue regarding overdevelopment than just our NIMBY concern. Again White Castle has no intention of conforming or addressing the community’s issues with their plan.

There are some major concerns;

• The entrance is located past the building that forces cars to do a 180 back to the restaurant.

• There is no shoulder or means to decelerate on that section of the highway because of the on-ramp to Rt 36 from Main St across from Port Monmouth Elementary School. Cars are expected to decrease from 50 MPH to 15 MPH on the highway to enter the restaurant while other cars are accelerating from 25 MPH to 50 MPH to enter the highway in the same lane.

• The use of a storm water basin (basically a 3 to 4 foot ditch) as the entire front yard instead of 35’ of landscaping required by the zoning code.

• On-site circulation for emergency vehicles such as fire trucks and ambulances are restrained due to the wide and design of the site. If there was a fire, the truck could barely make the turn into the site and might not be able to get back out due to the storm water basin.

• Buffer requirements for landscaping separating commercial and residential properties have either been eliminated entirely or reduced by as much as 55% to accommodate the building, parking area and the trash dumpster.

• The only handicapped parking spot is located in the most dangerous area of the roadway leading to the restaurant.

• Drastically increasing traffic leading to and away from the restaurant on surrounding neighborhoods and local streets do the location on RT 36 24 hours a day.

At the first planning board meeting on 11/02/2011 when presented with a formal objection by an attorney obtained by an objector, White Castle’s attorney asked for a private meeting. It was denied by the objector but when asked what the purpose for the meeting was, his reply was to see if any “concessions” could be offered to withdraw the objection. After the second planning board meeting on 01/04/2012 White Castle’s attorney sent a letter to the township accusing the planning board of being arbitrarily swayed for requiring them to conform to minimum code requirements. The attorney also stated in the letter that all the buffer requirements do not apply to the White Castles plan because the neighboring homes are in a business zone.

Just because our homes are located in a business zone does not negate the fact that we are members of the community, taxpayers and home owners in Middletown Township. We clearly have the same right of protection and continued use as a matter of law.

White Castle, thru their attorney, couldn’t bribe their way to an approval so they figure they will try to threaten their way to one.

At the third meeting on 2/1/2012, the planning board members didn’t seem too concerned and pushed even harder for White Castle to conform. We are grateful that board members have the interest of the people of Middletown first.

No one in the community, including ourselves, have any objection to White Castle based on their menu. Many of us would actually like a White Castle locally to add to the variety of fast food options in our area. Our objections are about where White Castle wants to locate their restaurant.

There are so many locations better suited that would not have such a negative impact on the community around it. These spots would actually benefit from this type of responsible development. We all know other towns where overdevelopment of highways like Rt 18, Rt 9, Rt 17, Rt 1, Rt 22 and even sections of our own Rt35 has created a less than desirable place to live due to overcrowding of commercial development.

Please don’t let this happen in our town. You’re opinion matters! If you are against this have your voice heard at the Planning Board meeting on March 7 in town hall at 6:30. If you can’t make the meeting send a message to the Township Committee via www.middletownnj.org click on the Departments tab then Township Committee and email all five members at once.

Additional information can be found at http://middletown-nj.patch.com/articles/white-castle-sliding-into-36-or-crawling

Shannon & Nicole Ecklof

Chestnut St, Port Monmouth