A sidebar discussion during a vote and ignoring evidence are among the reasons the court should toss out the decision by the Voorhees Planning Board that blocked construction of a new Super Wawa on Route 73, according to a lawsuit.
Developer NIKI-J&J Voorhees Cooper Partners LLC has gone after the Planning Board with a state Superior Court lawsuit in Camden that contends the board erred in December when it voted down the proposal to build on northbound Route 73 about a quarter of a mile south of the Cooper Road intersection largely based on worries about increased traffic.
The map of the proposed site for the Super Wawa shows its Route 73 (bottom) and Cooper Road (top) frontages.
NIKI-J&J, represented by CherylLynn Walters of Nehmad Davis & Goldstein of Egg Harbor Township, asked the court to reverse the Wawa denial and order an approval with no further hearing before the board. Walters said in her January filing that another option would be to send the matter back to the board with instructions to approve the application.
The proposed Wawa would straddle the Voorhees and Berlin Township border.Â
In its decision, the Voorhees Planning Board "relied upon its own ill-perceived and wholly unsupported concerns about alleged increases and/or impacts to off-site traffic congestion, while disguising its true basis for denial under the guise of alleged unsafe access concerns that likewise were not supported" by evidence, according to the complaint.
Previous coverage by 70and73.com:
Residents testifying at the board's December hearing and board members had expressed concern over potential traffic back-ups on busy Cooper Road near where the developer wants to build the Super Wawa.
The Super Wawa would have entrance and exit on Route 73 (bottom) and a long driveway would have an entrance and exit on Cooper Road (top).
The developer's suit calls the denial "based entirely upon expressed concerns with existing off-site traffic congestion along a county roadway, which the Planning Board acknowledged is not under its jurisdiction." The Wawa is a permissible use for the property in Voorhees zoning,
In a response to the complaint filed by Township lawyers in February, most of the developer's allegations were denied.
NIKI-J&J's lawsuit took particular aim at board member and Deputy Mayor Jason Ravitz and his role in the denial.
The suit points to sidebar discussions among board members during testimony and during the deliberation and vote.
"The most egregious example occurred while the roll-call vote was being taken, during which time Vice Chair Maureen Augustine and board member Ravitz...were engaged in a discussion at the conclusion of which the board member Ravitz advised the Vice Chair to 'just abstain,'" the lawsuit states.
After the sidebar discussion, Ravitz voted "no" on the application, which resulted in a 3-3 tie. Augustine, the last vote, abstained and the application was denied because it did not receive a majority of votes.
When asked by the developer's lawyer why she abstained, Augustine "indicated she did not want anyone to be harmed or injured as a result of a favorable vote so she could not, in good conscience, vote in favor of the application," the lawsuit states.
The lawsuit also contends the resolution that memorialized the board decision includes misstatements of testimony by applicant witnesses and misstatements of facts in the application.
In the complaint, the developer's lawyer states that the board resolution said the denial was justified because left-turn traffic from the site to Cooper Road would increase to an "unacceptable" 45 seconds from 30 seconds.
The "resolution does not reference or cite to any data or reliable industry standard or generally accepted industry source demonstrating 45 seconds is unacceptable in the field of traffic engineering," the lawsuit states.
