Developer Appeals Rejection, Files Second Application

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A developer, whose application to build a new strip mall on Kinderkamack Road was denied in May, has filed a writ appealing the Westwood Zoning Board's decision and also submitted a new application for the site.

The initial plan, submitted by Kmack North Associates, proposed to replace the defunct Chevrolet dealership on Kinderkamack Road with a new five-unit retail space. The site is located in one of Westwood's Limited Business Districts, which are only zoned for some specific retail uses. The applicant had requested a variance for "general retail use" at the site, but board members said they were uncomfortable granting that much leeway.

Kmack North filed an appeal and a second application after the first one was denied, according to David Lafferty, the applicant's attorney. The new application replaces the general variance with three specific use variances, Lafferty said. One of the uses, for a hairdresser, will not even be needed if the council approves an ordinance adding it as a permitted use during their meeting Tuesday.

"We understood that the board had problems with our request for an open-ended variance for general retail use," Lafferty said.

The board may not be able to hear the new application while the suit from the old application is still pending, according to board attorney David Rutherford. Three previous cases found that boards could not consider two applications from the same developer at the same time, according to Rutherford.

"The board simply doesn't have jurisdiction to see the second application," Rutherford said.

Lafferty said he believed the board could proceed, citing a ruling from last year which he said was more similar to this case than those Rutherford had considered. Lafferty also said the applicant would stay the lawsuit while the new application was heard and would dismiss the appeal if the board ends up approving the new application.

The board decided to carry the application to their October 1 meeting so Rutherford can review the case Lafferty cited.

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