FREEHOLD TOWNSHIP – A company that was denied permission to build a Shake Shack fast casual restaurant on Route 9 north in Freehold Township has filed a legal action against the Planning Board.
During 2018, Leemilt’s Petroleum Inc. sought approval to construct a Shake Shack on the site of a former Getty gas station at 4431 Route 9. The property is also bordered by Craig and Pond roads.
The application was denied during the summer when four Planning Board members voted not to grant variances the applicant had requested. Five “yes” votes are needed to grant a use variance; three board members voted to grant the variance relief the applicant sought.
The company was requesting conditional use variance relief to construct a restaurant with 84 seats where 125 seats is the conditional use requirement for a family style restaurant in Freehold Township’s Corporate Multi-Use Development 3/A zone. Other variances related to the property were also being sought by the applicant.
The applicant was represented by attorney John Giunco, of the firm Giordano, Halleran and Ciesla. During his summation before the Planning Board, Giunco said providing fewer seats than what is required by the township’s ordinance made the application more useful. He said off-site traffic was not an item on which the board members could judge the application.
Following the board’s denial of the application, attorney Matthew N. Fiorovanti, of the same law firm, filed a civil action in state Superior Court, Freehold. The Aug. 10 complaint names the Freehold Township Planning Board and Freehold Township as defendants.
The complaint makes claims that include the following:
• The board’s denial of the application is arbitrary, capricious and unreasonable, and is not supported by the evidence in the record;
• The board’s denial is contrary to the Municipal Land Use Law and is contrary to the principles of sound planning;
• The township ordinance’s requirement that a family style restaurant must have a minimum number of seats is arbitrary, capricious and unreasonable, and/or otherwise fails to support any rational purpose under the Municipal Land Use Law;
• The township’s zoning ordinance and the board’s denial has resulted in a situation where the zoning ordinance so restricts the use of the property that the property cannot practically be used for any reasonable purpose or the only permitted uses are those to which the property is not adapted or which are economically infeasible;
• Freehold Township has taken the company’s property by inverse condemnation and has failed to pay just compensation for its taking, in violation of the U.S. Constitution and the New Jersey Constitution.
Leemilt’s Petroleum is asking the court:
• To vacate the Planning Board’s denial of the Shake Shack application and reverse the denial and/or to remand the application to the board for consideration in accordance with the court’s decision;
• To declare the Shake Shack application to have been approved and the property to have received conditional use variance and bulk variance approval;
• To declare that the conditional use requirement in the ordinance that requires family style restaurants in the CMX-3/A zone to have a minimum of 125 seats is invalid and unenforceable;
• To compel Freehold Township to pay just compensation to Leemilt’s Petroleum for the regulatory taking of the property.
Answers to the complaint have been filed by attorney Frank Accisano, who represents the Planning Board, and attorney Robert Munoz, who represents the township.
In his answer, Munoz asserts, among other defenses, that Leemilt’s Petroleum “has failed to exhaust its administrative remedies in applying for a use for which the property may be suitable for development.” Munoz has asked the court to dismiss the complaint against Freehold Township.
In his answer, Accisano asserts that the applicant failed to meet the statutory requirements for the granting of a variance. Accisano has asked the court to dismiss the complaint and to affirm the action of the Planning Board denying the Shake Shack application.
The matter has been assigned to Superior Court Judge Owen C. McCarthy. McCarthy has scheduled a case management conference for Feb. 8 in the Monmouth County Courthouse, Freehold, according to a document posted on the New Jersey Courts website.
