Supreme Court favors developer of Rt. 27 pharmacy

SOUTH BRUNSWICK — Township officials are expected to meet in closed session soon to discuss their options weeks after the state Supreme Court ruled against them in a complaint involving allegations of inverse spot zoning.

Inverse spot zoning is when a municipality decides against a plan that is permissible, according to the town's zoning and master plan. The state's highest court ruled 5-2 in favor of Riya Finnegan LLC on Dec. 22, overturning a lower court ruling in favor of the Township Council's decision to rezone a nearly 13-acre property off Route 27 at the intersection of Finnegans Lane.

South Brunswick Councilman Joe Camarota Jr. said the council would likely have a discussion in executive session soon regarding whether it would accept the Supreme Court's decision or appeal it.

The vacant site is a large parcel where Finnegan proposed the construction of one professional building and two retail buildings: a 29,092-square-foot retail building and a 14,690-square-foot pharmacy. Neighbors residing in the area of the parcel expressed concerns that the development of a 24-hour pharmacy would generate more traffic, noise, odor, dust and pollution.

The South Brunswick Planning Board recommended that the council adopt an ordinance rezoning Finnegan's property from a C-1 zone, which allows neighborhood commercial construction, to an office professional zone, which prohibits commercial buildings.

The council then adopted an ordinance changing the parcel to an OP zone, which would allow Finnegan to build office buildings, but not the pharmacy. Officials like Mayor Frank Gambatese raised concerns about the property not being big enough for a large business like a pharmacy.

"This has been around for a long time," the mayor said. "The application was changed many times."

The state Supreme Court ruled recently that the council's decision to adopt an ordinance rezoning the property constituted impermissible inverse spot zoning and was arbitrary and capricious, since it relied on the assertions of neighboring property owners. This effectively reversed a prior judgment by the appellate division in the township's favor and reinstated the judgment of the superior court, which ruled in Finnegan's favor.

Two dissenting justices disagreed with the majority of the justices, saying that the ordinance cannot be nullified on the basis of the equitable doctrine of inverse spot zoning. They also said that the Democratic exercise of the township's will, through the legislative process, was not arbitrary or capricious.

The governing body is likely going to discuss its options in this case during the executive session of its Jan. 13 meeting, Gambatese said. He also said that roughly half of the property is wetlands and is therefore not developable, so he is concerned with the intensity of use that the developer is putting forward with the proposed pharmacy.

"The Planning Board felt that with that particular corner where it was on Finnegans Lane and Route 27 being so crowded, it presented a problem with traffic and noise," Gambatese said. "We felt it was a real problem, having an all-night pharmacy right next to a residential property — a large development at that."

Gambatese said that the OP zone was created for properties like this that he said do not have enough developable land to support buildings that are over 40 feet in height and require a large amount of space. He noted that developing the property in an intense manner would generate too much impervious coverage and would result in potential drainage problems.

Gambatese said that undesirable traffic conditions on Route 27 are in part the responsibility of Franklin Township, which is located along the southbound side of the highway across from South Brunswick.

"Franklin has developed their side of Route 27 to a tremendous degree," Gambatese said. "They have every possible type of building, along with condos, townhouses — all kinds of commercial development."

He said that further development of this intersection would result in a traffic nightmare for motorists, especially nearby residents.

"Some of the judges agreed with us," Gambatese said. "Some of the judges agreed that we have the right to rezone that property. Two of the seven judges agreed that we did the right thing. We did not prevent the development of the property… We think enough judges agreed with us that we did the right thing in this particular case."

Contact Michael Acker at

macker@gmnews.com.