In the continued fight over a proposed Walgreens in Oradell, developer Fred Daibes plans had yet another court strike a nail in the coffin as the out of Essex County upheld Bergen County Superior Courte Judge Joseph Conte’s decision regarding the project.
The three Appellate Division Judges Ronald Graves, Carmen Messano and Alexander Waugh ruled in favor of the Oradell Mayor and Council’s 2009 decision to overturn the borough’s Zoning Board approval of a use variance for a residential lot to be transformed into a buffer zone.
“We received the decision from the Appellate Court in the Walgreens’ matter and they have affirmed the decision by Judge Conte that the variance granted by the Zoning Board and overturned by the Mayor and Council should be upheld,” Council President Joseph Murray Jr. said.
In the 21-page decision written by Judge Graves, the Appellate Division "note that a governing body, like a zoning board, need not accept an expert's opinion" and as such the Mayor and Council have "the right to apply its own expertise and knowledge of the community and make the final evaluation based on the record."
Effectively, Graves and the other judges decided to reject Kinderkamack Road Associates LLC "claim that there were "special reasons" for the use variance" and that the "remaining arguments are without sufficient merit to warrant further discussion."
How Walgreens Came to the Appellate Division
Arguments were heard before the Appellate Division back in February with attorneys Stephen Sinisi (Kinderkamack Associates LLC), Richard Abrahamsen (CAPO), Michael Kates (Borough of Oradell) and Ira Weiner (Oradell Zoning Board of Adjustment) representing each side.
At the time, Sinisi argued that he "believe the governing body fell astray as well as the trial court judge. They wandered beyond the statutes for appeals from the Zoning Board for a D (use) variance."
The controversial project stems around developer Fred Daibes initial proposal to construct a 13,511 square foot Walgreens pharmacy on Kinderkamack Road between Cooper and Ridgewood Avenues. When the project went before the Oradell Zoning Board of Adjustment in 2008, the application called for Lot 9, in the residential zone to be converted to a 50-foot landscaped buffer zone between the pharmacy parking lot and the nearest neighbor's home.
While the Zoning Board approved the application in December 2008, a residential activist group, Citizen Action to Preserve Oradell was created and appealed the use variance before the Mayor and Council. In June 2009, the council decided to overturn the zoning board’s use variance decision. Following that Kinderkamack Road Associates LLC, filed a civil action complaint before the Bergen County Supreme Court. But their suit was denied by Judge Joseph Conte in April 2010 in a 19-page written decision.
In November 2010, stated they were no longer interested in the project. Property owner and developer Fred Daibes is pursuing the case so that he can go forward with constructing some sort of retail in the borough.
A copy of the Appellate Division's decision can be found at right.