In a ruling made last Friday, Judge Karen Cassidy of the Union County Superior Court upheld the validity of Union Catholic High School's building permit, which was obtained last June from the municipality of Scotch Plains, and dismissed the complaint filed against the private high school by attorney Mark Rogoff, who represents members of Dutch Lane in Scotch Plains.
The complaint alleged that Union Catholic had not submitted the required site plans or obtained the necessary variances to install updates to its baseball field.
Rogoff and attorney Joseph Murray, who represents residents of Black Birch Road, contend that the construction of dugouts and bleachers included in the upgrade of the school's athletic fields, fall within the definition of "structures," and therefore should have required Union Catholic to obtain use variances before the additions could be made. The township's zoning officer, Robert LaCosta, had deemed the upgrades as mere "accessories," which could be built within 100 feet of a street or property line, and he issued the permit on June 18, 2009. As a result, construction was allowed to proceed without public hearing and express approval by the Zoning Board of Adjustment.
Rogoff, who was hired by Rajul Shah of Dutch Lane, said he plans to appeal the court's decision on the grounds that the permit was issued to Union Catholic with "no legal basis."
"There is an ordinance that requires the 100-foot setback [for 'structures']," Murray said in a telephone interview (all interviews for this piece were conducted by phone). "I don't know if LaCosta overlooked it or forgot about it, but he should've said 'you can't do this' to Union Catholic."
After Union Catholic received the building permit last June, administrators invited residents of Dutch Lane and Black Birch Road to a reception at the school to discuss the planned construction.
"We had a nice little reception, discussed the updates, and answered questions," said James Reagan Jr., the assistant principal of Union Catholic High School. Reagan also stated that the school hosted a second meeting at which an engineer presented a detailed, 29-page plan outlining the proposed construction.
However, Shah, who attended the first meeting, said that she was not aware of the second meeting and that neither she nor her neighbors were invited to attend.
"We saw only an artist's rendering. We didn't see any construction plans," she said.
That was back in June of last year. It was not until July of this year, however, when the school's plan for stadium-style lighting and an electronic scoreboard arose, that residents of the streets abutting the baseball field instituted legal action. This 13-month gap, during which the vast majority of the challenged construction took place, became an integral issue at Friday's hearing.
Union Catholic's attorney, Bill Butler, contended that because residents of Dutch Lane and Black Birch Road had not opposed the school's building plans quickly enough, they were now "estopped" from taking action against the construction. That is, he argued that because Union Catholic began work without any objection by the adjacent property owners, the residents are now barred from raising objections to the work's completion
"[The residents] waited too long," Butler said. "They watched everything being built, Union Catholic spending 1.3 million dollars. The job was 99 percent done when they complained. Even if [the permit] was improperly issued, they can't attack it after [the construction] is already 99 percent done."
In ruling in favor of the school, Judge Cassidy was persuaded that the residents' lawsuit had been filed too late. She relied on New Jersey's municipal land use statute, which gives interested parties affected by a zoning officer's decision 20 days to appeal the decision to the zoning board of adjustment.
Rogoff, however, said he believes that the statute, referred to by the lawyers as "72a," should not apply in this case because the permit was originally granted with "no legal basis" and should therefore be considered void.
"There are cases that question the viability of this [statute]," he said. "The 20-day rule has not been applicable in situations like this, but that's fallen on deaf ears."
Murray asserted that the court's reliance on the 20-day limitation for appealing LaCosta's issuance of the permit improperly prevents LaCosta's misjudgment, and harm to residents, from being corrected. "That's well beyond the intended scope of the 20-day rule," he said.
Butler believes otherwise. "It's a statute. It's not ambiguous. Do I agree with the rule? It's the law."
Meanwhile, at its meeting June 28, the Planning Board, in a 5-1 vote (LaCosta was the lone dissenter), ruled that the lighting, scoreboard, and equipment shed still planned by Union Catholic are "structures," requiring a public hearing for a variance. The issue will be discussed at a Zoning Board meeting, probably in September.
Rogoff said he believes that the Zoning Board will agree that the proposed additions are "structures." "Then, Union Catholic will have to make some decisions. They'll probably file a request for a use variance through public notice that they didn't do back in 2009," he said.
The appeal of Judge Cassidy's decision, which must be filed within 45 days, will likely not be heard for at least several months. Rogoff, however, said he feels confident that when the "entire issue of June 2009" is discussed, the courts will rule in his clients' favor.
"It wouldn't be the first time someone's had to go to the appellate division to reverse a decision by a lower court," he said. "We're certainly not out of the box on the issue of the permit."
On their side, Butler and Reagan also expressed optimism.
"Considering the undisputed facts and certifications filed by Union Catholic and the very strong opinion of Judge Cassidy, I'm not worried about an appeal," Butler said.
"We definitely plan on continuing to follow the law, as the courts have said we have done," Reagan said. "It's a shame [Rogoff] is continuing it."
Editor's Note: Alan Neuhauser is a resident of Black Birch Road. Accordingly, this piece was edited by Cranford Patch editor Michelle Walbaum.