Fox & Foxx sues Metuchen over W. Chestnut plan denial

Aug. 2, 2017: Improper. Invalid. Unlawful. Arbitrary. Capricious. Unconstitutional. Null and Void. And of no force and affect.

That’s how Fox & Foxx Development, LLC, describes the Metuchen Planning Board’s rejection in June of the developer’s plan to subdivide a property on W. Chestnut Ave. into two lots to make room for a new home.

The Edison real estate developer is suing the borough, Borough Council, the mayor and the planning board over the rejection of its application for what it calls a “minor” subdivision on the property at 212 W. Chestnut Ave.

Fox & Foxx also is suing companies and individuals it says are working with the borough to undermine the plan, but whose identities are unknown to the company, according to the July 10 filing made in New Jersey Superior Court. Fox & Foxx is represented by DiFrancesco, Bateman, Kunzman, Davis, Lehrer & Flaum of Warren, New Jersey. Robert Foxx and Steven Fox, managing members of the firm, did not respond to email questions Wednesday.

“Defendants’ denial was not based upon a legitimate governmental purpose, but rather, constituted an irrational and wholly arbitrary decision that deprived plaintiff of its right to equal protection generally and under the United States and New Jersey constitution,” Fox & Foxx said in the court filing.

Metuchen Mayor Peter Cammarano declined to comment, citing pending litigation. The Planning Board is set to discuss the lawsuit at its meeting Aug. 3, according to the meeting agenda, part of which will be in closed session.

Lot width

At issue is the borough’s view that the proposed development would have detrimental effects on the character of the neighborhood. “The detrimental effect of granting the application would outweigh any benefits that would result from the granting of the application, which benefit the board finds to be nonexistent,” according to the Planning Board’s resolution denying the application.

The property is about 0.37 acres and contains a two-story, single-family house with a framed deck and an above-ground pool. Fox & Foxx proposed to subdivide the property into two separate lots with 50 feet of frontage on W. Chestnut Ave. and to build a two-story, single-family structure with an attached one-car garage, porch and paved driveway on the proposed second tract. The existing home would remain on the proposed first tract, according to court documents.

Fox & Foxx requested variances from the borough’s required 62.5-foot minimum lot width, proposed at 50 feet; 8-foot side setbacks, proposed at 5.8 feet; and the 10-foot above-ground swimming pool side setback, proposed at 5.5 feet, according to court documents.

“The granting of these requested variances would, in and of itself, be detrimental in that the size and shape of the proposed new residence, together with the reduced lot size, would create an undesirable appearance of larger two story homes on undersized lots, especially where the governing body amended the ordinance only a few years ago to strengthen the lot width requirement,” the Planning Board said in the resolution denying the application.

The board said “many” properties within 200 feet of the property are wider than the proposed lots, including one lot of 102.5 feet, six lots of 75 feet, one lot 60 feet wide, two lots 55 feet wide and one lot 52.5 feet wide, the resolution said.

The company argued the plan is in keeping with characteristics of surrounding homes. Forty percent (25) of the homes surrounding the site had lot widths of less than 50 feet, with most of those dwellings with width of 40 feet. Forty percent of the homes surrounding the site have lot widths of 50 feet, the same as the plan, Fox & Foxx said. Overall, 80 percent of the homes surrounding the plan site did not meet the borough’s 62.5 feet lot width requirement, the company said.

“The proposed dwelling substantially conformed in all aspects with municipal zoning requirements and the bulk variances which the plaintiff sought would materially conform with the surrounding dwellings,” according to court documents.

Further, the company argues the borough does not define ‘neighborhood’ in its code so it made its own definition, focusing on homes within 200 feet of the site.

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