Planning board attorney Douglas Kovats, right, leads a joint swearing-in of witnesses at the February 19 hearing. (Photo by John T. Ward. Click to enlarge.)

By JOHN T. WARD

Even Fair Haven residents hopped up about a proposed Dunkin’ shop might want to fortify themselves with extra caffeine Thursday.

That’s because a zoning board hearing on the controversial plan could prove to be a seminar in arcane land use law.

Dominic Sequeira, whose family would run the Dunkin’ shop, with attorney Michael Bruno, who represents the shopping center’s owners. The shop would be located next door to the Cellar wine shop, below.  (Photos by John T. Ward. Click to enlarge.)

The meeting is scheduled for 7:15 p.m. at the Sickles School, rather than borough hall, to accommodate possibly heavy turnout.

The Dunkin’ application to open shop in the Acme supermarket complex on River Road sparked fierce debate on a community Facebook page earlier this year, generating so many “nasty” posts that the page administrator shut down comments.

That was after the sole planning board session on the matter, at borough hall on February 19, drew a crowd so large that the meeting had to be relocated a block away to the school gymnasium.

But the merits of the underlying application are not at issue Thursday, lawyers involved in the matter said. Instead, the zoning board will hear arguments from at least three attorneys on whether that board, as opposed to the planning board, is the legally appropriate venue for the proposal.

“Right now, the zoning board is only serving as a gatekeeper” to determine which board should rule on the underlying application, said Red Bank lawyer Ron Gasiorowski, one of two attorneys who filed objections on behalf of Fair Haven residents.

As previously reported by redbankgreen, Gasiorowski, representing Battin Road resident Andrew Reger, and Michael Convery, representing Tracey Cole of Grange Avenue, argue that borough zoning officer Nicholas Poruchynsky wrongly determined that the store is a “category 2” permitted use under local ordinance and sent it to the planning board for review.

Instead, the objectors claim, the Dunkin’ shop should be classified as either a category 3 or 4 restaurant, both of which are prohibited. If the challenges succeed, Fair Haven Retail LLC, owner of the shopping center, would have to then pursue a variance from the zoning board, which carries a higher burden of proof than a change of use.

Michael Bruno, representing the shopping center, told the planning board at its February 19 session, where the objections were first raised, that Gasiorowski and Convery were “trying to create an objection so they can delay, hinder, try to convince you that there is some position to deny this application.”

Even if the zoning board finds it should hear the case, that hearing is not likely to be begin Thursday night, its attorney, Mike Irene, said Wednesday.

“We’re not hearing the application. We’re hearing someone’s request for an interpretation and/or someone’s challenge to the zoning officer’s determination,” he told redbankgreen. “The underlying application is still pending before the planning board,” and legally required notices to nearby property owners have only been sent regarding that application, he said.

Here’s the agenda.