A neighborhood block association fighting plans for a Wawa in Newark believes the city's Central Planning Board needed more than the three "yes'' votes it used to approve the project last fall.

The vote was 3-1, with four abstentions to allow a Wawa with 16 gas pumps and a convenience store to be built at McCarter Highway near Gouverneur and Clark streets.

The proposed project has these nearby residents worried about who might frequent an all-night convenience store without a security guard present. But the vote to approve has sparked a separate controversy.

"This is a hot mess,'' said Lisa Gray, president of the Broad Street Block Association. "It didn't pass. I don't care what they said."

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The group's attorney, Richard Schkolnick, laid out the reasoning about why the application should not have been approved in a letter to planning board Chairman Wayne Richardson.

According to state municipal land use laws, Schkolnick said, the planning board did not have a majority vote of its members to pass the measure. The board has nine members. Only eight were present.

"All actions shall be taken by a majority vote of the members of the municipal agency present at the meeting,'' the statute says. "Failure of a motion to receive the number of votes required to approve an application for development shall be deemed an action denying the application.''

Schkolnick believes the planning board needed five "yes" votes from the eight members present at the meeting to have a majority.

"I don't know how you get to three being a majority of those present,'' Schkolnick said.

He referred to Robert's Rules of Order, which considers abstentions to have the same effect as "no" votes if a majority of board members present is required.

However, the rules also state that abstentions are ordinarily counted and noted not as a "yes" or "no" vote, that abstentions do not affect the voting result.

Richardson, however, disagrees with Schkolnick. He said the agenda item was approved because the three members who voted in favor of the plan -- Richardson, Leon Purdie and Deon Mitchell -- represented the majority vote at the meeting.

The abstentions, he said, are counted with the majority vote of the board members. So, that would mean the application passed 7-1. The members who abstained were Miguel Rodriguez, Jacqueline Ceola, Marshall Cooper and Michael Lockett, all whom did not state why they abstained.

Michael Oliveira, attorney for the applicant, TonyMar LLC in Elizabeth, which owns the land on which Wawa plans to construct the project, said he was not at liberty to speak about whether the project passed.

Further complicating the 3-1-4 vote is that the planning board was supposed to take another vote on a "memorialization resolution" to make its Oct. 30 approval official.

Whether that has happened is in question. Schkolnick said the city's Office of the Boards has yet to send the tally sheet that shows the planning board memorialized its Oct. 30 vote.

"I'm not clear that they've done that yet,'' he said.

Another issue is that Gray and Schkolnick say the project is not a permitted use and should have been presented to the Zoning Board of Adjustment.

Schkolnick said the project needs a conditional use variance pertaining to the width of the driveways. Gray said it's also not a permitted use because the gas pumps are not allowed under the city's riverfront redevelopment zone, which is near this project.

"The store is fine,'' Gray said. "We would take the store without the gas pumps.''

Richardson, again, disagrees. He said the project is a permitted use and does not need a conditional use variance.

The project, located in the Lower Broadway neighborhood, is near a mix of similar commercial businesses.

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Aside from the vote, though, Gray said her organization has worked hard over the past 10 years to improve the quality of life in the area, which includes ridding the neighborhood of prostitution.

She believes an unsavory element would return, because the proposed 24-hour Wawa doesn't have security guards, which would attract loitering.

The issue, however, most likely will wind up in court.

Gray said the association plans to appeal the decision, but it can't do that until the memorialization resolution is voted on by the planning board.

"We know it didn't pass,'' Gray said. "We're just waiting for the opportunity to go to court to say it didn't pass.''

Barry Carter: (973) 836-4925 or bcarter@starledger.com or

nj.com/carter or follow him on Twitter @BarryCarterSL