The corporation's lawyer said he has withdrawn a lawsuit aimed at reversing the Township Planning Board's August rejection of the company's application to construct a drive-through restaurant on Route 9, near Smithville's well-known shopping and pedestrian village.

The lawyer, Sal Perillo of an Egg Harbor Township firm, said the McDonald's corporation, which has seen its worldwide sales flag, has been re-evaluating and abandoning some of its plans for new building projects across the country. Perillo said the company opted to drop its plans for a Smithville restaurant because the project did not meet new "financial criteria for profitability."

He insisted the decision had nothing to do with the corporation's confidence in its case. "What (McDonald's) has decided to do is cut back and pick only the most profitable projects to proceed with," he said.

The corporation's suit, filed in Atlantic County Superior Court in October, contended that the Planning Board acted improperly and prejudicially and was unduly influenced by local popular sentiment when it voted 5-4 to deny McDonald's plans and accompanying application for a variance for signs. The suit argued that the board's basis for denying the application - that a drive-through restaurant is inconsistent with the local land-use rules for the property - amounted to 11th-hour scapegoating. The suit contended that the issue of zoning was only for the Zoning Board to decide and should have had nothing to do with the Planning Board's considerations.

The board's attorney, Fred Scerni, said Tuesday that the township was prepared to proceed with the suit and felt confident that "the decision itself was a proper decision given the zoning for the district."

Scerni said the township argued in its written response to the lawsuit that a drive-through restaurant was not allowed at the site because the zoning does not specifically mention drive-through restaurants as a permitted use. Scerni said that in other areas of the township where drive-through restaurants are permissible, the zoning mentions them specifically.

Scerni said the area of the proposed McDonald's does permit drive-throughs of other sorts - such as the one connected to the CVS pharmacy next door to the site - but not ones for fast-food purposes.

"Having done the research on the issue in preparation and in the drafting of the brief, I'm fairly confident that the position of the board could have been upheld by the court had (the suit) gone forward," he said. "It's just unfortunate it wasn't dismissed earlier."

During the two meetings on the issue, Smithville residents turned out en masse to protest the project, waving signs and shouting, cheering and even booing the corporate representatives. The residents told the board that they were resolutely opposed to a McDonald's restaurant being located near the shopping and pedestrian village, which is comprised of transplanted and refurbished old buildings whose historical relevancy Perillo and the other McDonald's representatives repeatedly called into question. Several board members also offered impassioned words against the application during the meetings. Board member Richard Smith called the corporation's plans "horrendous" and a "typical ugly McDonald's building."  
 
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