The property that Cherry Hill Dodge wants to turn into a parking lot is in the yellow border. The two homes, on Wynwood Avenue, are to be demolished under the dealership's plan.
Motions in state and federal courts to dismiss lawsuits by the owners of Cherry Hill Dodge, which is challenging a Cherry Hill Township decision that shut down the dealership's plan to demolish two houses and expand its parking, have been filed by Township lawyers.
The Township federal dismissal motion — filed December 8 in U.S. District Court in Camden in advance of a January court hearing — consists of a sharp rebuke to the dealership's owners and calls the lawsuit "an improper, end-run attempt."
Cherry Hill Dodge owner Charles Foulke Jr. and Foulke's Lenny Reality LLC, which owns the properties for the parking expansion, are plaintiffs in the federal suit. Lenny Reality and Foulke Management Corp. are plaintiffs in the state Superior Court suit in Camden County.
Foulke's son, Charles Foulke III, who runs the day-to-day operations of the dealership, agreed to conditions in a 2020 Planning Board resolution that approved the dealership's preliminary and final site plans that included tearing down two houses on Wynwood Avenue to make way for 75 employee parking spaces for the adjoining new and used car operation on Route 70.
Conditions in the Planning Board resolution included an agreement not to use remote car horns to find vehicles on the lot, not to take test drives in the Locustwood neighborhood and not to allow suppliers to unload on busy Fulton Street next to the showroom.
But Locustwood residents later complained that horns were still going off, leading the Township to rescind the demolition permits, which halted the dealership's expansion.
The Township's zoning officer canceled the demolition permits and the Zoning Board of Adjustment in September rejected an appeal by Cherry Hill Dodge to reinstate the permits.
"Plaintiffs, who apparently never had any intention of complying with (conditions of approval) and, instead, conducting business without any regard for the residents who live in close proximity, now cry foul because the Township of Cherry Hill has rescinded the zoning permits issued in conjunction with the aforesaid land-use approval," the Township lawyers stated in the federal court motion for dismissal.
"Despite having agreed to these conditions of approval under oath," according to the Township motion, "plaintiffs now make the unbelievable, self-serving claim that Mr. Foulke only did so because he was 'under duress' and that he 'would not have ever agreed to the conditions which limit the legal rights of Cherry Hill Dodge, if he was not receiving the benefits of the additional parking on the additional property.' "
Previous article:Â Cherry Hill Dodge lawsuit: We agreed to Planning Board conditions for expansion 'under duress.'
The Township's motion states that while the Foulke's amended complaint is largely the same as the original complaint, it also has expanded and adds the Zoning Board of Adjustment as a defendant.
Township lawyers also state in the filing that Cherry Hill Dodge's owners no longer seek reissuance of the rescinded zoning permits, but instead the dealership owners contend their Fifth Amendment Constitutional rights have been violated and they should be compensated through nominal and punitive damages and payment for attorney's fees.
In a December 8 motion to dismiss the state Superior Court suit, the Township lawyers cite case law findings in New Jersey that "courts cannot substitute an independent judgment for that of the boards in areas of factual disputes."
"A local zoning determination will be set aside only when it is arbitrary, capricious or unreasonable," the lawyers stated, quoting the case of Kramer v. Board of Adjustment, Sea Girt, from 1965.
The motion for dismissal of the Cherry Hill Dodge lawsuit in Superior Court stated that "there can be no doubt that the conduct of (the Township), which is entitled to a presumption of validity, must be upheld. While the court may not agree with the zoning board's decision to uphold the recission of the zoning permits, there can be no doubt that defendants had the power to do so and that the record supported the board's decision as reflected in its resolution."
Two houses on Wynwood Avenue owned by Cherry Hill Dodge, with siding removed earlier this year. The dealership wants to demolish the structures to add a parking lot.
