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Neighbors, attorneys argue over plan for homes near Lower Township wildlife area

LOWER TOWNSHIP — Those in the standing-room-only crowd at Thursday’s Zoning Board meeting were bound for disappointment if they expected a ruling on a plan to build 21 homes in the township’s conservation zone, or even a chance to have their say.

Marcello Mogavero has a contract to purchase 7.37 acres of woods adjoining the Cox Hall Creek Wildlife Management Area, a 253-acre stretch of woods, grassland and ponds once known as the Ponderlodge golf course.

Most of the private land — 98 percent of it — falls in the township’s conservation zone. Mogavero is seeking a use variance to build on the land.

According to testimony presented at the meeting, the current owner of the property received it in payment of debts while the Ponderlodge was in financial trouble, before the state bought the now-wildlife area in 2006.

Opponents of the plan crowded the meeting, but after about three hours, went home without getting a chance to speak. Board Chairman Jim Hanson had announced at the start of the meeting the board would take no new testimony after 10 p.m. The meeting adjourned with a plan to take public comments at the next meeting, planned for 7 p.m. March 7 at Township Hall, 2600 Bayshore Road.

The applicant’s attorney, Jeffrey Barnes, argued the property should never have been placed in the conservation zone in the first place. He argued the city did not know a portion of what had been the Ponderlodge was not included when the state acquired the property as a natural area.

Speaking on behalf of the applicant, planning expert Tiffany Morrissey said the proposed single-family homes fit the character of the neighborhood and community. She told board members the conservation zone should be — and almost always is — limited to public property, because it does not allow for development. According to Barnes, the zoning amounts to the township taking the land, what’s known as inverse condemnation.

“Clearly, the conservation zone is not an appropriate zone for this property because there is no use of this property,” Morrissey said. “Every property owner has the right to use their property. It is a fundamental principle of planning and zoning.”

William Galestok, the township’s planning director, supported this claim, telling the board he believed the property to be part of the state-owned wildlife management area when the zoning was changed in 2010. Asked if it would have been zoned that way if the Township Council had known it was private property, he said, “absolutely not.”

An opposing attorney argued that doesn’t matter. Attorney Justin Turner told the board the owner could appeal to the township to change the zoning, and that inverse condemnation should be taken to the courts. But neither plays a role in approving a use variance.

Turner was hired by neighbors to oppose the use variance. Ellen Seward, one of his clients, spoke about the beauty of the property and the importance of Cox Hall Creek to the community. She walks through the property several days a week.

“Open space is a very valuable commodity in a township,” she said.

Turner also presented experts who described the site as important to wildlife, including to migrating birds of prey and the endangered southern gray treefrog.

If the board approves the use variance, the plan will still need approval for the subdivision, along with an OK from state agencies. The plan presented shows a new road off Fourth Avenue with houses on either side. Project engineer John Kornick indicated two of the proposed lots would front on Shawmount Avenue, which connects to Bayshore Road and is the main entrance to the state wildlife area.

He said his client would be willing to include a right-of-way to the park between the houses so it could be reached from Fourth so neighbors would not have to walk the long way around.

Kornick drew a strong reaction when asked about the trees and plants at the site that would have to be removed.

“It’s part of progress and development,” he said. The ordinance tells developers to do the best they can to protect and preserve trees but added it is not required. He said an effort would be made to protect the most significant trees on the property.

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