Judge rules Howell must

allow U.S. Home project

Development OK’d

on Hascup tract

By kathy baratta

Staff Writer

State Superior Court Judge Lawrence Lawson, sitting in Freehold, has ruled against the Howell Planning Board and has overturned the board’s denial of an application filed by U.S. Home.

The judge’s ruling apparently clears the way for U.S. Home to build more than 130 homes on the Schuch-Hascup property on Route 524 in northern Howell.

Lawson agreed with a claim U.S. Home made in a lawsuit it filed against the Planning Board that the board’s April denial of its development application was "arbitrary, capricious and unreasonable."

U.S. Home asked the court to reverse the board’s denial, to order the signing of the subdivision map and to have the application approved under its preliminary subdivision ap-proval as well as any additional subdivision approvals sought by U.S. Home for the subject property.

The developer, based in Freehold Township, got the relief it sought from the court.

Lawson’s decision will allow U.S. Home to proceed with its proposed construction of a 135-home development on a 203-acre parcel known as the Schuch-Hascup property located between Howell and Havens Bridge roads.

When the application first came before the Planning Board, the property was zoned for what U.S. Home proposed and no variances were necessary. Waivers allowing existing structures to remain and detention ponds to be built inside proposed buffer zones were being sought.

Mayor Timothy J. Konopka, who sits on the Planning Board, opposed the project from the start and recused himself from hearing the application.

In his written decision, Lawson recognized Konopka’s right to oppose the proposal and to recuse himself from the application. However, because Konopka had spoken out against the application in print and in public at a Planning Board meeting when he stepped down from hearing the application, the judge said the mayor’s outspoken opposition could have affected the board’s final vote.

In part, Konopka said, "God has given beauty and these guys (U.S. Home) want to come and rape and destroy it because greed and money is more important to them than anything else..."

In his written decision Lawson said, "It is unclear what extent (Konopka’s) desire had on the Planning Board’s decision." He goes on to note, "Case law, however, is clear that the actual prejudice is of less import to the question of when recusal should occur than the potential for conflict," adding, "The court also notes that the Planning Board has been less than receptive to this applicant, making a successful proposal somewhat impossible."

When the application came before the board, Konopka said that if it was approved, the U.S. Home project would change the makeup of the entire area, degrade the quality of life and put a tremendous burden on the community and school system as well as create a traffic hazard in the area.

Lawson said in his decision, "A board may not deny an application in light of inconsistency with the general welfare of the municipality or sound planning. Rather their decisions must be made within the framework of the standards prescribed by the subdivision and if pertinent, the zoning ordinances."

Since the time when the application was opened in June 2000, the Township Council changed the zoning designation of the subject property from ARE-1 and ARE-2 (one home on a 1- or 2-acre lot) to ARE-6 (one home on a 6-acre lot).

The final April 2001 vote by the Planning Board to deny the U.S. Home application indicated that the board held with Konopka.

In its appeal, U.S. Home argued that the Planning Board’s professionals had raised a number of procedural issues and questions which, the judge said, were "solely intended to delay the processing" of the application.

The judge went on to say in his written opinion that U.S. Home "is correct in their assessment that the board’s decision to deny the application is without factual support in the record."

Writing about concerns expressed by the board during its consideration of the application, Lawson wrote, "The transcripts reveal that every request and suggestion made by the board was taken into consideration and often adopted as part of the applicant’s revised proposal."

The judge also commented on the time span over which the application was heard and the way in which U.S. Home was afforded a chance to make its case.

Lawson wrote, "Although (U.S. Home) repeatedly expressed a need for expeditious treatment, months spanned between hearings, at which, discussions on the application were rushed. In quasi judicial hearings such as these an applicant should be afforded due process protection ... The remedy should a board fail to adhere to the statutorily mandated guidelines is purposefully strict: ‘Otherwise, the planning board shall be deemed to have granted preliminary approval to the subdivision.’ "

Lawson said the Howell Planning Board would be able to impose necessary conditions on the final approval of the U.S. Home application.

On Monday, Lawson told Greater Media Newspapers the township had 45 days from the date of his Oct. 26 decision to issue final Planning Board approval for the proposal. The judge said the court would retain jurisdiction over the matter pending its approval.