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Politics & Government

Board Pushes Aquatics Center Decision to September

But appeal determined to be valid.

Residents appealing the zoning approval for the proposed Berkeley Aquatic Center's new 51,000-square foot facility on the border of Warren and Berkeley Heights argued that the facility would not be consistent with permitted use under municipal ordinances at the zoning board meeting on Monday night.

In front of a packed house of around 100 people in the Susie B. Boyce Meeting room at Warren’s municipal complex, attorneys representing interests both for an against the facility made passionate arguments as to why it did or did not belong on the proposed site, nestled between Hillcrest Avenue and Emerson Lane in Warren.

Driving their arguments were two key factors: whether township zoning officer John Chadwick erred in accepting an application as a conditionally permitted use of the site, and the interpretation of the ordinance as it defines the type of facility permitted for “recreational use.”

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The BAC application was submitted, correctly, with the planning board earlier this year. Planning boards have jurisdiction over permitted land use and site plans once they meet zoning requirements; but the zoning board has jurisdiction over suitability and land use variances.

The application had come before the zoning board as the result of an appeal by Warren resident Jonathan Wishnia, who contested whether township zoning board officer John Chadwick made the right determination on the application.

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On April 5, Wishnia filed an appeal of Chadwick’s determination that the center’s swimming facility was a conditionally permitted use of the site within the required 20 days after learning of Chadwick’s decision, but failed to include the $5,000 escrow deposit. A day later he refiled with the deposit.

“There are no forms for this kind of an appeal in this town,” Wishnia said. “The land use law does not provide a basis for an appeal.”

The evening’s hearing could not be conducted without board approval of Wishnia’s appeal.

After 40 minutes of arguments related to Wishnia’s intent, the board determined that Wishnia had every intention of filing his appeal and the escrow payment on time.

“Given the lack of a specific set of documentation around an appeal, I do believe that Mr. Wishnia did seek to file an appeal within the 20 days,” said board president Foster Cooper. “Why escrow was not included, I believe was an administrative issue.”  

The attorneys then moved forward with detailed legal arguments about the not-for-profit and for-profit nature of the BAC business as it relates to land use. 

Richard Skolnick, the attorney for the Stop the BAC Neighborhood Association made up mostly of Berkeley Heights residents, pointed out that a memo Chadwick sent on March 8 to the Planning Board referred to the BAC as a “non-profit aquatic center.”  

“The ordinance says that commercial recreational facilities are not permitted in this zone,” Skolnick said. “The ordinance specifically prohibits this kind of facility.”

After Skolnick had made his points, Wishnia had an opportunity to elaborate on his appeal. He told the board that despite what the BAC said, the facility would not be open to the public despite advertised as such, that accessory usage, such as the proposed aqua therapy pool indicated the center’s commercial focus and that parking would be an issue.

Cooper, however, cautioned that discussions were drifting off point. He reiterated that the purpose of the meeting was to determine whether Chadwick erred and clarification on whether the ordinance would permit such a project. 

Peter Wolfson, the attorney representing the BAC then took an opportunity to refute all of Wishnia’s comments.

“The facility will be a place of recreation, a place devoted to athletic activities as opposed to open space. Swimming pools are recreational,” Wolfson said, citing New Jersey Supreme Court and the New Jersey legislature definitions.

“The ordinance does not state whether the owner or operator has to be a non-profit,” Wolfson said, and, “all members of the public are welcome to try out, however, the ordinance provision does not require that it be open to the public.”

With 10 minutes remaining in the meeting, the board said that it wanted to hear from  Chadwick.

“I have not changed my opinion,” Chadwick said, indicating that he is sticking to his review that the BAC’s application is an acceptable use in its designated zone. 

“There is no question that this is a recreational facility and there is no question that it is dedicated to swimming,” Chadwick said. “To the extent that there will be some other activities related to the principal use of swimming, are all site plan issues.”

The residents for their part, had the benefit of an overview of a case that they feel they can win.

“The great turnout shows how much the residents care,” said Berkeley Heights resident John Woods. “They got to see what the case is all about.”

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