Politics & Government
Stop & Shop Objects to ShopRite Hearings
Attorney argues zoning board, not planning, is proper venue for application
Hearings on Inserra Supermarkets Inc.'s proposal to build a ShopRite at the site of the old A&P on Greenwood Avenue began Wednesday night over the objection of an attorney representing Stop & Shop.
Planning Board attorney Joseph Perconti advised the membership that Inserra's bid for site plan approval could proceed over attorney Kathryn Razin's contention that the board was not the proper venue for the application.
Razin, of the firm Price, Meese, Shulman & D'Arminio, argued on behalf of Stop & Shop and property owner Munico Associates that the B-5 zone where the proposed ShopRite would be located does not allow supermarkets. Therefore, Inserra should be seeking relief before the zoning Board of Adjustment, Razin said.
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"Our primary contention... is supermarkets are not permitted uses in the B-5 zone."
The zone allows a wide variety of commercial uses, including retail food stores and drugstores. It does not explicitly mention supermarkets, which are allowed under the B-5/SDAH-2 zone.
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"It's a notable distinction," Razin said. "The fact that supermarkets are not listed... is quite significant," she said, arguing that, by ordinance, any use not explicitly allowed under a zone is disallowed.
"Retail food stores is a Krauszers, not a supermarket," Razin said.
She concluded that the "Planning Board lacks the jurisdiction to proceed with the application and should not and cannot go forward without creating a jurisdictional defect that cannot be cured later on."
Inserra attorney James Jaworski, of the firm Wells, Jaworski & Liebman, argued that precedents establish supermarkets as a permitted use in the B-5 zone. He also pointed out that retail food stores and drugstores are allowed in the B-1 Central Business Zone and B-1A Triangle Business Zone, although supermarkets are explicitly excluded as a permitted use in the B-1A zone.
"Had there been a contemplation of eliminating supermarkets in the past, I think you would have incorporated that in the B-1 criteria and B-5 criteria as you did in the B-1A Triangle Zone," Jaworski told the board.
He also pointed to prior supermarket applications heard by the Planning Board under the B-5 zone, including the A&P whose building would be razed to make way for Inserra's ShopRite.
Perconti agreed. He said Thursday that he "felt confident" that "Wyckoff has allowed prior supermarkets under the B-5 zone," with the argument largely over semantics. In his view, there isn't a sharp distinction between "retail food store" and "supermarket."
"I'm satisfied we could continue hearing the application before the Planning Board," he told the members Wednesday.
Perconti said the risk of proceeding on the application is largely Inserra's, should a court one day agree with Razin's arguments. Jaworski said Thursday that even if it was determined that a zoning change was needed, he and Inserra representatives are not wasting their time, as the Planning Board still must approve site plans. However, he doesn't believe the argument has much merit.
"I believe very clearly that it's a permitted use" in the B-5 zone, Jaworski said.
Stop & Shop's objection arrived via faxed letter to Jaworski's firm and Town Hall at approximately 4:50 p.m. Wednesday, with a bit more than two hours to spare before the Planning Board convened.
"You almost figure that's the way it's (an objection) going to happen," Jaworski said today. "They're trying to delay the process."
Razin said Wednesday that although her letter alludes to other possible actions in the event the Planning Board hears the application, she "couldn't say" what the firm's next steps would be.
"We're going to wait out the hearings," she said, and "we plan to object throughout the hearings."
Razin did not respond to questions submitted Thursday on the firm's plans now that the Planning Board has begin its hearings on the project.
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