The Cherry Hill zoning board voted on Sept. 7 to uphold an April decision by the township zoning officer that revoked demolition permits granted in December to Cherry Hill Dodge Triplex owner Charles Foulke Jr.
There have been complaints from neighbors about the dealership for three years. Foulke first came before the planning board in August of 2020 proposing site approvals and bulk variances to “demolish residential structures, consolidate three spaces into the dealership’s primary lot and develop 75 new employee parking spaces.”
Foulke also sought various site improvements, according to a planning board resolution. From August to October, when the decision was made in his favor, more than 20 residents voiced their opposition.
The application was granted with a number of conditions to address residents’ concerns, including bringing lighting levels at the business into compliance and shutting them off after the business closes, and prohibiting off-site deliveries and some test drives on surrounding neighborhood streets.
Dodge was also required to set up a year’s worth of monthly neighborhood meetings and put into place a procedure to locate vehicles without horns or alarms. But according to residents of the Locustwood development and adjacent areas, problems first discussed in 2020 have persisted.
The residents came before council one year after the conditions were listed in April 2021 and again in February, and noted that the dealership was still using the, drag racing was taking place, and the mandated monthly meetings with neighbors ended after three sessions.
In March, several township officials joined residents to visit the dealership site; the permits were rescinded for lack of compliance with conditions on April 20. The preceding issues were considered “part of the record” that the township knew about when making that decision, an important factor because, unlike regular sessions where applications are heard, the Sept. 7 zoning board meeting was an appeals case.
The board could only take into account evidence or testimony of issues that occurred before April 20 and were known to the township and zoning board officer at the time the permits were rescinded.
Throughout the three-hour Sept. 7 meeting, Peter Chacanias and Laura Ruccolo, lawyers for the dealership, presented a number of arguments to the zoning board.
” … We are of the position that those conditions do not take effect until the parking lot expansion is in fact complete,” said Charcanias. “It’s a condition of that approval, therefore, (that) it does not take effect until that approval, or (until) the addition (of the lot) that approval allows is, in fact complete.”
Charcaias then made the argument that his client was being asked to prove a negative, and that the dealership didn’t violate the noise ordinance with car alarms.
Zoning board Chair Jonathan Rardin clarified that the dealership was not being prosecuted for the noise violation, but for violating a condition previously agreed to by it and the planning board.
Ruccolo argued that the previously summarized record shows no evidence of any violations regarding noise.
“There’s no specific date, time, vehicle, employee of Cherry Hill Dodge, there’s just these vague complaints that we heard horns,” she maintained.
“You mean overwhelming complaints with specific times and dates?” Rardin then asked.
“It doesn’t identify any specific vehicle,” Ruccolo responded. “It doesn’t identify any specific employee, so how do you rebut that if you can’t identify a car or employee?”
Zoning board lawyer Eric Riso responded to both arguments by noting that the dealership owner had agreed to the conditions set by the planning board and that if it were the case that those conditions took place after the construction occurred, the permits likely would not have been issued.
“These conditions of approval were agreed to by your client, who testified under oath before the planning board that he would agree to all of them, and at no time, including up until now, has he ever challenged any of these conditions of approval,” Riso argued.
” … There are complaints that are part of the record that he was in violation,” he added. “That’s why the zoning officer rescinded the zoning permits. You appealed it.”
During the September session, several members of the community highlighted violations that were already part of the record and some comments were stricken due to irrelevance. Prior to the meeting’s start, Charcanias also made an argument against public participation due to the limited scope of what was being considered.
Resident Frank Maloney, who had previously raised complaints, decided not to comment at the meeting due to being called out by Ruccolo during her questioning, and because of the public testimony’s limited scope. He was not the only one to decide against speaking.
“I know there were a number of residents who intended to testify, but the nature of this hearing, not through any fault of the zoning board or the attorney, just the way things are going, has had a chilling effect on people coming forward to testify from the public,” said resident Alexander Esposito.
Zoning board members at the meeting ended up voting unanimously to uphold the decision rescinding the permits. Rardin and board member Rob Connor also addressed the argument against public comment and noted that neither of them relied on public comments to make their decisions.
“Nothing was presented to question any of the evidence actually on the record,” Rardin pointed out. “You were not tasked this evening with proving that you did not do something, but you appealed the decision based on certain facts, and no argument was made to attack those specific facts … I just don’t believe that the evidence presented was insufficient.”
“I have seen nothing tonight, I have heard nothing tonight to dispute validly what was concluded in that letter and in the evidence,” said board member Marshall Spevak.