Dallenbach saga continues in S.B.
Dallenbach saga continues in S.B.
Zoners hear testimony despite two new
By CHARLES W. KIM
SOUTH BRUNSWICK — Despite two potential conflicts, the Zoning Board continued testimony last week on the proposed Dallenbach Sand Co. expansion.
The Deans Rhode Hall Road mining operation is seeking a variance to expand into the neighboring Heavy Equipment Operators Training Site.
The company first presented the application to expand last fall.
Zoning Board Attorney Benjamin Bucca said at the beginning of the June 29 meeting that two issues had arisen that might present conflicts for the board.
The first issue deals with a board member and the second with lawsuits filed by Dallenbach and the township.
Toll Brothers, which is represented by the same law firm as Dallenbach, is interested in developing a piece of land which board member Bharat Patel has an interest in, Bucca said. Bucca did not explain what that interest is.
Bucca asked Patel to excuse himself from the board meeting until he could determine if there were indeed a conflict of interest. "We don’t know all the facts," he said.
Bucca said that if the attorneys determine that a conflict does not exist, Patel will be able to "listen to the tapes" of the meeting and vote on the application.
Board Chairman Robert Southwick said in his 14 years on the board, he has always used financial dealings as a measuring stick to determine whether a conflict of interest exists.
"My feel is that if you are not financially involved with the case in front of the board, you really don’t have a conflict," he said, referring to the Patel situation.
Gary Forshner, Dallenbach’s attorney, said that he concurred with Bucca in having Patel sit out of the session "so as not to take a risk in tainting the procedures."
The second issue, however, may be more complex.
Dallenbach filed a lawsuit earlier this year accusing the township of placing unfair restrictions on his mining permit by prohibiting him from importing sand from other locations to mix with the sand he mines.
Dallenbach President Jack Whitman has stated that the operation requires him to import the other products in order to meet state regulations for mixing the sand.
Whitman said that he imports between 40-60 percent of the products’ components to meet those guidelines.
In response to Dallenbach’s suit, the township filed a countersuit against the company, claiming that the operation was in violation of the township’s mining ordinance by importing that much product.
Those suits have been handled independently from the application until now.
According to both attorneys, state Superior Court Judge Douglas Wolfson, sitting in New Brunswick, met with the parties sometime between June 26-27 for a case management conference.
Although neither Bucca or Forshner attended the conference, both said that they were advised that Wolfson asked Dallenbach to present a zoning use application to the township for the current operation to see if it is a permitted use under the current non-conforming variance that the company has.
If it is deemed not to be a permitted use under that variance by the township, the company may need to appear before the board for another variance for the current site, which may affect the decision on the expansion application.
Several members of the board wondered if the hearing should proceed.
"I have problems continuing the hearing tonight with this question open," board member Barry Nathanson commented.
Bucca said that he did not know how the judge’s request might affect the expansion, but said that the board should continue to hear testimony on the plan.
"All the professionals are here," he said, adding that the applicant would not be able to complete his testimony and the hearing would still have to continue.
"There is no legal detriment" to hearing testimony, Bucca said.
Bucca said that both issues had only developed in the 48 hours prior to the meeting, and that the attorneys would need time to figure it all out.
The next hearing on the application is scheduled for Aug. 18.