SUPERIOR COURT OF NEW JERSEY
LAW DIVISION-HUDSON COUNTY
DOCKET NO: HUD-L-1341-99

ROBERT KOTCH and LINDA KOTCH,:
MARICEL and ALEJANDRO PRESILLA:,
NIKKI KORDA, THOMAS PENDERGAST,:
MARK WOODWARD, CHRISTINE CORNELL
and NATHANIEL MERRILL, resident :
property owners of Weehawken,
FRIENDS OF WEEHAWKEN WATERFRONT,:
a non-profit corporation
consisting of residents and:
taxpayers of the Township of
Weehawken,:

Plaintiffs,:

vs :

TOWNSHIP OF WEEHAWKEN, THE:
PLANNING BOARD OF THE TOWNSHIP
OF WEEHAWKEN, RICHARD F. TURNER,:
RICHARD BARSA and ROSELAND/PORT
IMPERIAL SOUTH, LLC. the applicant,:

Defendants.
:

PLAINTIFFS’ TRIAL BRIEF
VOLUME I
STATEMENT OF FACTS

SEGRETO & SEGRETO
Attorneys for Plaintiffs
329 Belmont Avenue
Haledon, NJ 07508
(973) 956-8400

James V. Segreto, Esq.
Of Counsel and on the Brief

STATEMENT OF FACTS

This is a suit instituted on February 18, 1999 by resident property owners which seeks to invalidate land use approvals granted on November 5, 1998 by the Planning Board and thereafter again approved in 1999 after suit was instituted.

Hearings were held on September 10, 1998; September 24, 1998, October 22, 1998, and November 5, 1998. The plans were amended and signed on November 6, 1998. In January the Board adopted memorializing Resolutions. No statutory notices were given as to the de novo adopted of the Resolutions.

MEETING OF SEPTEMBER 10, 1998

Six members of the Planning Board were present: Mark Gould; Richard Turner; Albert Cabrera; Carol Kravitz; Anthony Rosas; and Richard Barsa. No statement indicating the date of notification under the Sunshine Law nor the time and place of the notification to the newspaper nor the posting of the special meeting notice was made at the opening of the meeting. (T 9-10-98 p. 3) The first witness called by the applicant was Carl J. Goldberg who was a principal of Roseland Property Company. (T 9-10-98 p. 13-14) The tract under discussion is approximately 46 acres. (T 9-10-98 p. 14) The subject of the application then pending was the planned development application as an underpinning for any subsequent site plan application. (T 9-10-98 p. 14) His testimony that evening dealt with the planned development application. (T 9-10-98 p. 11)

Mr. Goldberg is not an expert and was not qualified to testify as an expert. He testified that no variance or no waiver requests were made. (T 9-10-98 p. 15) He also opined as to compliance or lack of compliance with ordinance provisions. That testimony was not competent and cannot be the basis for any findings of fact by the Board. (T 9-10-98 p. 15)

The first element in the planned development application is the new ferry terminal. (T 9-10-98 p. 16) The existing ferry terminal is aged and is not up to taking the kind of ferry traffic that is anticipated in the future, and in particular, in terms of the light rail construction. (T 9-10-98 p. 16) The ferry terminal is to be relocated to a new location on the cove about 900 feet north.

The new ferry terminal building will be approximately 30,000 square feet between three to four stories and have four boat slips. (T 9-10-98 p. 16) Southward there are two residential elements in the planned development. One is a low-rise condominium style building directly on the waterfront which will house 120 units. (T 9-10-98 p. 16) The second directly to the west will be the home for Care Matrix who is a developer of assisted living and senior care facilities. Directly southward is the key element of the application which will be included in the initial site plan application and it will consist of between 44 and 58 Brownstones. (T 9-10-98 p. 17)

Already in existence on the planned use development is Arthur’s Landing which is a restaurant along the waterfront. (T 9-10-98 p. 18) The entire residential component of this planned development application is 478 residential units. (T 9-10-98 p. 18) Port Imperial Marina which is in front of the brownstone community will remain in place and will remain operational subsequent to the construction of these Brownstones. (T 9-10-98 p. 18) South from the Brownstones and part of the planned development is a change in an existing building which is known as the "Banana Building". It is approximately 125,000 square feet. (T 9-10-98 p. 19) The building is going to have the same footprint.

It will have three uses subsequent to its redevelopment: a catering facility, a wellness center, and the corporate offices of ARCORP Properties. There will also be some tennis courts and exterior parking to service the uses within the banana building. (T 9-10-98 p. 19) South of the banana building the planned development application proposes park- land for the Township of Weehawken. The design of that park- land is "still up on the air". (T 9-10-98 p. 19)

The last part of the planned unit application is a facility on the southern most part of the property to have an enclosed facility to take care of ferry maintenance and bus maintenance obligations of the New York Waterway operations as well as minor repairs for boats that occupy slips within the marina. This building will be approximately two stories. (T 9-10-98 p. 20)

The project will provide a 16 foot hardscape waterfront walkway down the entire sector throughout the frontage of the property. (T 9-10-98 p. 20) He characterized the assisted living as in no way, shape or form a nursing facility. It does not have on-site medical facilities. It’s just another type of lifestyle for active adults above the age 62. (T 9-10-98 p. 23) He was asked whether the planned development conforms with the Weehawken ordinances and standards.

He expressed an opinion which he was not competent to give since he is not qualified as an expert. (T 9-10-98 p. 25) He indicated that they had not prepared a cost revenue analysis and are preparing one which will be part of the document packages to be submitted. (T 9-10-98 p. 26) The tallest structure in the planned development will be 12 stories and will be 120 to 130 feet in height. (T 9-10-98 p. 28)

The next witness who testified was Laura Staines. She is a registered architect and planner in New Jersey. She indicated that from the top of the Palisades you will certainly see the center line of the Hudson River. (T 9-10-98 p. 32) She said that is a requirement of the ordinance. (T 9-10-98 p. 33) She indicated that the 140 feet building will allow for 15 to 16 story high building. (T 9-10-98 p. 35)

Additionally they are required to provide view corridors which will not have any structures or buildings over 50 feet from the high water line in that view corridor. She indicated that the ordinance requirement for this section is 1,150 lineal feet of view corridor. (T 9-10-98 p. 37) The banana building does not provide an unobstructed view of the shore- (T 9-10-98 p. 38) line because of its proximity to the edge of the shoreline. (T 9-10-98 p. 38) The entire development is located within the north Weehawken view plane. (T 9-10-98 p. 40)

None of the buildings are proposed to be constructed within the limited build zone and none of the building violate the minimum distance between buildings and view corridor requirements. (T 9-10-98 p. 41) She testified that the overall development is 66 acres and that is the portion of the development that was under consideration that evening. (T 9-10-98 p. 42) She concluded that the open space requirements provided, exceed those required by the ordinance. (T 9-10-98 p. 43-44)

Some parking is shown but they don’t show a whole lot of parking on site. That will be dealt with in the future. (T 9-10-98 p. 44) Landscape similarly will be identified on a parcel by parcel basis. (T 9-10-98 p. 44) She was asked if she has reviewed the Weehawken Master Plan, official map and development ordinances and she responded that she has. (T 9-10-98 p. 44-45) She testified that the plans conform to the ordinances. She did not testify that they conform to the Master Plan. (T 9-10-98 p. 45)

The next witness to testify was Jeffrey Lanza who is the engineer for the applicant. (T 9-10-98 p. 50) He was offered as a licensed professional engineer. (T 9-10-98 p. 51) He indicated that there are adequate sanitary sewer facilities to accept the sewerage. (T 9-10-98 p. 56-57) The only thing he said about stormwater was that the wet well will probably need to be enlarged. (T 9-10-98 p. 57) They are going to discharge into the Hudson River directly. The Boulevard will have a series of cross drains. The last outfall will have an oil water separator to allow for some water treatment "and that’s basically how the stormwater is". (T 9-10-98 p. 58)

The next witness of the applicant was Michael Maris who is their traffic engineer. (T 9-10-98 p. 60) He indicated that the traffic impact studies "are still underway". (T 9-10-98 p. 64) He indicated that the relocation of the ferry terminal will not increase any traffic and that it will have a zero impact. (T 9-10-98 p. 65)

However, he disregarded the testimony of Mr. Goldberg on page 16 that the existing "Jamestown ferry terminal is aged and not up to taking the kind of ferry traffic that is anticipated at the mid and long-term future in particular at the time in terms of light rail construction". (T 9-10-98 p. 16) Mr. Maris said concerning the banana building that it basically has existing 15,000 square feet of office space. That will not change. That will remain. There is nothing new being done over there and therefore it will not generate any additional traffic. (T 9-10-98 p. 66)

He disregarded the testimony of Mr. Goldberg on page 19 that the banana building is approximately 125,000 square feet and it will now have three uses subsequent to its development, a catering facility, a health wellness center, and corporate offices for ARCORP Property. He also said the health club is going to generate very little traffic and when the development occurs the traffic will be internal. (T 9-10-98 p. 66)

He referred to the assisted living facility as a senior citizens home and did his traffic generation based upon that assumption. He disregarded the testimony of Mr. Goldberg that it is not a home, it’s just another lifestyle facility for senior citizens. With regard to the other residential units he said there are 58 Brownstones and 120 condominiums. (T 9-10-98 p. 76) The testimony on page 68 that the means of vehicular and mass transit access to the development is adequate was based on a total misconception of the traffic engineer as to exactly what the scope of the development was.

Mr. Lanza the engineer was called. (T 9-10-98 p. 68) He testified that the environmental department of his firm did the environmental impact assessment and the report concludes that the design was done in a very environmentally sensitive manner. (T 9-10-98 p. 68) Some of the soils on the site are contaminated and that will be remediated. (T 9-10-98 p. 70)

Mr. Goldberg was recalled. (T 9-10-98 p. 71) He indicated that the property has entered into a voluntary clean-up program administered by the DEP. (T 9-10-98 p. 71) They are awaiting approval from the DEP. (T 9-10-98 p. 73) They anticipate submitting the waterfront development permit application for the brownstone neighborhood sometime during the month of September. (T 9-10-98 p. 74)

The waterfront easement which they propose in the brownstone neighborhood is less than 30 feet wide although the hardscape will be 16 feet. He then offered some opinions, which were incompetent since he was not an expert, as to what the DEP deviation procedures are. (T 9-10-98 p. 75) They intend to apply to the DEP for a deviation in the width of the easement. (T 9-10-98 p. 75)

Mr. Goldberg testified that in the brownstone neighborhoods there are areas where the provided easement is less than 30 feet. (T 9-10-98 p. 76) He doesn’t know if in the area of the banana building that the easement area is also less than 30 feet. Mr. Goldberg said he would provide an answer at a subsequent meeting. (T 9-10-98 p. 76)

In response to the Board attorney’s question as to whether there is a plan which shows the staging and how the various stages fit together, the attorney for the applicant said that they plan to do that when they come in with the individual site plans. (T 9-10-98 p. 77) In response to a question of a board member he responded that he does not know what the pricing of the Brownstones would be. (T 9-10-98 p. 79)

Mr. Lanza, in response to a question, indicated that with regard to traffic signals there is none proposed in this phase of the development as far as he knows. (T 9-10-98 p. 81) He repeated there is no signal requirement as planned as part of this planned development application at this point. (T 9-10-98 p. 82) The Mayor, Mr. Turner, indicated "restaurant parking, as the Chairman knows, everybody in this room knows is constantly out of control. Constantly." Mr. Goldberg said: "I think we understand your concern and we appreciate that this is an element where we’re going to go back and do some homework and give you better thought out answers." (T 9-10-98 p. 89)

In response to a question by a board member as to whether there was going to be any parking facilities for the public that is non private to access the walkway, he said, "Yes, there will be. Not only is that a requirement of the Weehawken Planning Board but that is a significant requirement of the Waterfront development permitting process. So we will have to be able to demonstrate to both the Township of Weehawken and the Department of Environmental Protection sufficient spaces reserved for the public who wish to come to the waterfront walkway, park at the site and access the waterfront walkway. So yes, there will be the required amount of spaces set aside for access to the waterfront walkway." (T 9-10-98 p. 94)

The Board attorney advised the applicant’s attorney "that there were some things that he, as our consultant and I, as our attorney, feel that are necessary for the complete, you know an application that meets the standards of our ordinance, that will include things such as pedestrian access, a parking phase plan, some description as to how the ferry is to function in each stage of the development, the impact of light rail on the project that, you know, has a three to four year development plan, the park issues. We need to talk about the parking issues and things at the park. . .Parking issues at the park. How the restaurant will function at all stages of the development. We need to see a detailed open space plan. He reports that part of the parking for the banana building are in the easement for roadways, and there may be other things that will be included in the more comprehensive report, but I want to let you know that those are some of the things that the professionals think are needed in connection with this application." (T 9-10-98 p. 95-96)

Mr. Lanza testified that they have not submitted their plans to the Port Authority yet. They plan to put some fill on the tunnel and park on top of the tunnel but they need the approval of the Port Authority. (T 9-10-98 p. 114)

The architect planner, Ms. Staines, acknowledged that they planned to utilize the walkway as a bikeway. (T 9-10-98 p. 114) She indicated the specific details concerning the pedestrian walkway and the relationship with the bikeway are being prepared by the engineer. Mr. Dunn, the Board Attorney, said, "I think you’ll find in our ordinance, Mr. Dette, that that’s exactly what the ordinance requires that if a bicycle path is to be included such path shall be separated from the pedestrian walkway. That what our ordinance says. . ." (T 9-10-98 p. 115-116)

Mr. Goldberg testified that the catering facility is intended to be a place for weddings, bar mitzvahs, graduation parties, other types of banquet. (T 9-10-98 p. 120) The square footage, Mr. Goldberg said, for the catering facility is approximately 35,000 square feet. (T 9-10-98 p. 121)

In response to a question by a member of the public the Board attorney said, concerning where the parcels of common open space are, "I think we’ve asked for that plan, Judy, we recognize that that hasn’t been submitted and that’s one of the requirements that Mr. Jurasin and I have for submission."(T 9-10-98 p. 123)

In response to a question by another member of the public about the plan not showing the integration of pedestrian activity the Board Attorney said, "Yes, that was one item on my list. Specific plans for pedestrian access."

In response to a question from the public about the location of the proposed light rail station Mr. Goldberg said, "I know exactly where the light rail station will be . . . and if you’d like us to show it on the plan we will." Mr. Dunn, the Board Attorney, said, "Excuse me that was item 4." He was referring to the list of additional submissions required of the applicant. (T 9-10-98 p. 138)

Mr. Goldberg in response to other public input said, "We certainly recognize and acknowledge that Baldwin Avenue needs to be and should be improved and we have some very specific thoughts about the improvement of Baldwin Avenue". (T 9-10-98 p. 140)

When a member of the public asked the traffic engineer if in his study he included developments in contiguous municipalities, the traffic engineer responded, "We are still doing extensive. We haven’t done it yet." (T 9-10-98 p. 140) Mr. Maris testified he has not in his studies addressed the possibility of additional traffic as a result of utilization of the LRT. (T 9-10-98 p. 146) Mr. Maris acknowledge in response to a question from the audience that with respect to the catering facility he did not discuss the catering facility. (T 9-10-98 p. 148) He then said with regard to the health club that he has estimated that 50 percent of the patrons of the health club will come from within the site and the other 50 percent from outside the site. (T 9-10-98 p. 149)

Mr. Goldberg also said, "We have not developed retail plans yet for this site." (T 9-10-98 p. 150) Mr. Goldberg also testified that, "In November of 1997 that preliminary final major subdivision approval was granted by this Board and in December of 1997 a map was filed formerly creating the subdivided lots. As part of this application, we are requesting some line or lot line modifications, now that we understand the needs of our site plan application." (T 9-10-98 p. 155)

The Board Attorney again stated on the record that the Weehawken ordinance requires a 30 foot wide easement. (T 9-10-98 p. 158) Mr. Dunn said about the subdivision changes, "there are some changes in lot lines insofar as they relate to the Brownstones because their engineer has shown that the water location is different on this plan than it was on the other." (T 9-10-98 p. 159) The Board Attorney also said, the modification of the parking lot is not a minor modification and needs to be more fully explored by the Board." (T 9-10-98 p. 159)

Mr. Lanza said, "What we try to do here is show -- the existing zoning map for Weehawken shows the area split up into these three zones the way it exists today and the zones are industrial zone and in the center of the north end of Weehawken two residential zones will be north and kind of along the Palisades. B2 zone is recreation and B3 an office park zone. These three zones are actually shown on your zoning map but they get superseded because of the way this area is designated as a planned development area. We showed them anyway just for some kind of a context that this area is -– had been this at one time." (T 9-10-98 p. 162)

The Board Attorney later commented, "To me I think Mr. Lanza said it was the PD zone supersedes. I think he was absolutely correct." (T 9-10-98 p. 164) The Board Attorney also said concerning the setback requirements of the ordinance, "The setbacks are superseded by the planned development. . . It’s typically shown on the subdivision, but one the PD is approved, the setback are no longer relevant." (T 9-10-98 p. 164-165)

A member of the public asked, "Do you have any affordable housing elements in this set aside? This is not a joke. This is what is required." The Mayor responded, "It is not a joke. . . In all fairness you know our ordinance deals with this." (T 9-10-98 p. 168) The Board Attorney, Mr. Dunn, then said, "As you know our ordinance provides for that and our ordinance will be enforced." (T 9-10-98 p. 168)

MEETING OF SEPTEMBER 24, 1998

Those present at the meeting were Mark Gould, Richard Turner, Albert Cabrera, Carol Kravitz, and Richard Barsa. The transcript reflects that no Sunshine notice opening statement was made at all at the commencement of the meeting. (T 9-24-98 p. 2)

Mr. Goldberg testified that the land delineated on the site plan for parklands is 6.07 acres. (T 9-24-98 p. 5) Mr. Maris testified, "Now on the parking, I have not done a parking assessment." (T 9-24-98 p. 7) In response to a question about sanitary sewer improvements Mr. Lanza said, "If it turns out that more has to be done to that, then that’s something that can be done." (T 9-24-98 p. 8)

The Board Attorney said concerning sanitary sewer improvements, "Any approval that this Board grants is subject to them doing whatever they have to do to satisfy the Sewer Authority and the DEP and those people are experts in sewerage, we’re not." (T 9-24-98 p. 9-10)

The Board Attorney said, "No building could go above the view plane. If they build up the land underneath it the building has to be smaller." Mr. Gould said, "There’s an ordinance that defines that the elevation is measured from finished grade, so usually that’s where they measure from." (T 9-24-98 p. 15)

A member of the Board asked what the effects of the project would have on our police department and the Mayor responded, "I think Eugene, we haven’t had testimony about that yet, and at some time we have to address that but at this point I think it’s premature."

The Mayor also said that the developer has to submit testimony about fire departments costs. (T 9-24-98 p. 24) A member of the Board said, "there’s a cost benefit analysis. That is something that they have to submit for review by the Board and that will spell out as to what they see as increases in revenue of taxes and cost to the town, and that will be something that will be reviewed." (T 9-24-98 p. 25) He also added that the same applies to the school system. (T 9-24-98 p. 25)

The Board zoning expert, Ms. Hartman, indicated that in doing her report that she relied upon the dimensions and statistics indicated on the plan drawing. She said,"however, there are several component future site plans that do not provide adequate details at this point." (T 9-24-98 p. 32) She indicated extensively what findings of fact and conclusions the Board is required to make." (T 9-24-98 p. 33-35) Included was "to promote the development of affordable housing". (T 9-24-98 p. 34) She also indicated, "The applicant, through its testimony reports should address those issues and has to a certain extent addressed some of them." (T 9-24-98 p. 35)

She also indicated that there is a requirement that no building, structure or sign is proposed within the Palisades Preservation setback subject to a provision concerning minimum distances and view corridor requirements. She said, "However, this ordinance requirement will be formally reviewed for compliance as each component site plan comes before the Planning Board." (T 9-24-98 p. 37)

She also said, "Regarding off-street parking and loading, that presently the proposed planned development does not provide any information regarding the number of parking spaces that would ultimately be developed. The applicant will be required to meet our parking ordinances. Provisions for individual use must be reviewed with each site plan and no limited parking is proposed at this point." (T 9-24-98 p. 38)

She also said, "The applicant has not provided any landscaping plans with submission of the proposed planned development. Individual site plan applications will be accompanied by landscape plans and the Board will require the use of them to have an opportunity to ensure that the landscaping in the parking areas is adequate." (T 9-24-98 p. 38)

She also said, "The applicant should provide the Township with a staging or phasing plan that shows both the proposed development and the removal and/or relocation of existing uses. "It should incorporate the existing uses that will remain active following the completion of the development among these uses by the marina, the restaurant and the structure commonly known as the banana building. As individual site plans are submitted for the board’s review, the specific requirements of section 23-10.1 through should be reviewed for consistency with the general planned development plan and with requirements of the ordinance regarding view planes, view corridors, total housing units, parking standards, total units of the space requirements, total floor are ratio, and any other requirements of our ordinance." (T 9-24-98 p. 38-39)

Mr. Jurasin, who is the Board Engineer, indicated that the proposed sanitary sewer system does not appear to be clearly shown on the overall utility plans and access points to parking areas are required. Additionally, some of the easement areas have to be more clearly defined as to the uses within them. Some seem to overlap each other. (T 9-24-98 p. 41) As to drainage inverts and drainage areas the plans are incomplete. Some of the site grading was incomplete. They should determine the water and how those water systems are drained. (T 9-24-98 p. 42) Access to the pump stations wasn’t clear and that has to be provided. Disposition of existing utilities that would no longer be needed have not been indicated and utility conflicts have not been resolved. Telephone and utility facilities have not been shown and clearly defined. The discharge of the drainage system needs to be clearly defined. (T 9-24-98 p. 42)

The thirty foot walkway isn’t shown consistently throughout. At the brownstones there is a lack of a 30 foot width. (T 9-24-98 p. 43) There hasn’t been a major traffic report as it relates to the master plan. (T 9-24-98 p. 44) There are differences in the subdivision plan with the subdivision plan that was actually approved in 1997. (T 9-24-98 p. 44) The engineer requires a clear picture of what the differences are so he can report back whether there are significant or minor changes in the prior subdivision approval. (T 9-24-98 p. 45) Each land use should be identified with specific information on size, type of operations and sequence of development. (T 9-24-98 p. 45) The adult living component for retirees would generate different kinds of traffic and parking requirements. (T 9-24-98 p. 46) With respect to the banana building he indicated they are having three or four different kinds of land uses and we need to have a document so it is clearly written down and clearly explained as they go into the transportation and parking aspects of it. (T 9-24-98 p. 46)

The proposed parkland and open space should be identified as to size and location. Pedestrian access, vehicle access, identification of the number of parking spaces and their availability. (T 9-24-98 p. 46) The Board Engineer also said it is necessary to identify the location and size of the right of way pedestrian access to the walkway, the bikeway separation. (T 9-24-98 p. 47)

Transit considerations must be dealt with both with bus and rail including vehicle access and parking for those transit uses and the actual anticipation of usage of those two modes of transportation of the different components within this plan. (T 9-24-98 p. 47)

With respect to the ferry terminal and its gate access, its parking, its transit access, more information must be given. As to the schedule of the relocation of the ferry terminal the detail on the size and operation and its access during the first phase and information must be generated as to how it is going to relate to each development phase within the total initial planned unit plan. (T 9-24-98 p. 47)

Additionally, more information has to be given concerning the whole traffic operations in terms of each land use, how does it interact with each other, how it interacts with existing traffic on the Boulevard, how does it react to the existing land uses that are within the Master Plan but not really changing, for example the restaurant. (T 9-24-98 p. 47-48) It is also necessary to have an identification of critical access points. (T 9-24-98 p. 48) As to the adequacy of the Boulevard under the development plan information as to the order of magnitude of the public roadway and infrastructure improvements that would be provided is required. (T 9-24-98 p. 48-49) Once that detail has been given then "we’ll get into the details of the specifics in terms of congestion, in terms of stacking lanes, in terms of how many lanes in each of the driveways, in terms of how many parking spaces, in terms of the parking layouts. As we go into each final site plan review and detail as the process continues." (T 9-24-98 p. 48-49)

Laura Staines, the architect/planner of the applicant, was recalled. Her testimony consisted essentially of identifying documents and referring to exhibits.

Mr. Lanza, the engineer, was then recalled. (T 9-24-98 p. 61) He similarly identified documents which were marked as Exhibits. He indicated that they are proposing a relocated parking area for the ferry consisting of 476 parking stalls. He indicated they will be reducing the number of parking stalls for the relocated ferry. (T 9-24-98 p. 68)

Mr. Jurasin interjected that he wanted to know where the parking for the restaurant is now. Where will it be not only in location, but in number so that we have it all in front of us in a complete picture, i.e. a complete tally of now and in the future. (T 9-24-98 p. 69) The engineer said "That’s no problem. We can take care of that." (T 9-24-98 p. 69-70)

Mr. Lanza said concerning the senior housing facility parking which shows 456 parking stalls, "We had 476. So we had a net increase of 11 stalls over what is there currently." (T 9-24-98 p. 70) He indicated they also deducted from the amount that they had on the previous phase and placed the facility in that area. (T 9-24-98 p. 70) He also testified, "We had a net of 11 parking stalls surplus and we lose five or six stalls. We have a net of five parking over what’s there today." (T 9-24-98 p. 72)

Mr. Goldberg testified again that subsequent to the redevelopment of the banana building there will be three prominent uses. The offices of ARCORP Properties are approximately 15,000 square feet, an approximately 30,000 square foot catering facility and an approximate 20,000 square foot health and wellness center. So the redevelopment of this structure will incorporate those three uses. (T 9-24-98 p. 81-82)

He indicated that the specific details of the parking and the site plan will be done in the context of the specific preliminary and final site plan application which will be the next site plan application presented to the Board after the discussion of the brownstone neighborhood. (T 9-24-98 p. 82)

The Board Attorney said, "One of the things that Mr. Jurasin asked in his report tonight, that you didn’t have an opportunity to review, was a breakdown of how you calculated things like the traffic for various components of the building and presumably how you calculated the parking demand for those aspects. I think those would be master planning items that we need to discuss, need to address as part of the overall plan." (T 9-24-98 p. 85)

The attorney for the applicant said, "You’re saying that you want that now, not just a part of the site plan?" Mr. Dunn said, "I think so. My concern is I think the park and the banana building are – there’s a limited space." (T 9-24-98 p. 85)

In speaking of the number of parking spaces for the banana building, Mr. Lanza said 150 spaces for the office space, 304 parking spaces for the catering hall and 196 parking spaces for the health club. (T 9-24-98 p. 90-91)

The attorney for the applicant said, "That was by the Board of Adjustment." Mr. Lanza then said, "Correct, and that’s a total of 650 spaces and we’re fitting 156 proposed spaces. There’s a slight shortfall." (T 9-24-98 p. 91)

While the Board engineer who was testifying as to the calculations of required parking space requirement, the Board Attorney said, "Let’s not get into testimony about this. Let Mr. Lanza write a letter to Mr. Jurasin, what he did and how he did his calculations, because there’s no sense in wasting time on this at this point. (T 9-24-98 p. 92)

During these discussions concerning parking spaces the Board Attorney said, "When I heard that being presented, 450 new parking spaces for the ferry, my goodness, what if Care Matrix doesn’t get built? The Board of Adjustment has been controlling the parking spaces for the ferry and that spirit, I think, has to carry forward." (T 9-24-98 p. 94-95)

Mr. Kienz then advised the Chairman that their testimony is concluded. (T 9-24-98 p. 98) A Board Member inquired of Mr. Goldberg concerning the spaces for the ferry and the senior assisted living getting developed. "Will those parking spaces eventually be moved and that land developed? Mr. Goldberg said, "That is a possibility." (T 9-24-98 p. 125)

MEETING OF OCTOBER 22, 1998

No Open Public Meetings opening statement was given. The Chairman simply said, "This is the continuation of conceptual review and approval of the proposed planned development for block 36.05, lots 1.01 and 1.02; block 45, lots 6, 7, 8, and 9; block 45.01, lots 1.01, 2.01, 3.01, and 4.01; block 45.02, lot 1.01; block 64.01, lots 1.01, 2.01 and 3.01; and block 64.03, lot 1.01." (T 10-22-98 p. 4)

The Board Attorney announced that at the September 24^th meeting the hearing had been adjourned until October 1^st. There wasn’t a quorum and Turner, Barsa and Gould adjourned the meeting until October 22 and a notice was posted in a sign saying that the meeting had been adjourned until October 22. (T 10-22-98 p. 4)

Mr. Dunn also said that the Board is not prepared at this point with an engineering report. He saw a report from Mr. Lanza that discussed a lot of engineering difficulties and that the Board is not ready to respond totally. (T 10-22-98 p. 5) He, therefore, suggested to the applicant that it present the site plan for the Brownstones. (T 10-22-98 p. 5)

The attorney for the applicant indicated that this is a separate and distinct site plan so they are going to start all over. (T 10-22-98 p. 6) Mr. Goldberg is a principal of the applicant. He is not an expert and was not qualified to offer any expert opinions. It was indicated that the property is currently being used for boat storage. (T 10-22-98 p. 8)

Mr. Goldberg testified that the Brownstone site plan shows the townhouse building along the riverfront with an access drive off Imperial Boulevard; the waterfront walking element in front of the brownstone neighborhood; the marina in front of it; Arthur’s Landing. (T 10-22-98 p. 9) He indicated that the number of buildings will stay static. (T 10-22-98 p. 10) The number of dwelling units within those footprints could vary from 44 to 58. (T 10-22-98 p. 10) The reason for the variability is a marketing reason. (T 10-22-98 p. 10)

He indicated that they have issues in terms of maximizing the distances between the dwelling units and the waterfront walkway and they also want to balance that with a marketing desire to have as much space as possible between Port Imperial Boulevard and the units. (T 10-22-98 p. 13) The height of the buildings is approximately 48 to 50 feet. (T 10-22-98 p. 17) At the conclusion of Goldberg’s testimony the Chairman said that they want to hear all the testimony first. (T 10-22-98 p. 17)

The next witness called was Laura Staines who was the planner who represents the applicant. (T 10-22-98 p. 18) She indicated that the location for the elegant townhouses was ideal because of its proximity to the existing restaurant and to the proposed health facility. (T 10-22-98 p. 18) She also indicated that the site plan being considered is different than the one that was submitted. (T 10-22-98 p. 19) She indicated that the plan shows the approximate location of the representative buildings "and all these will be refined as we proceed further into engineering." (T 10-22-98 p. 20) They have individual footprints that vary from 24 to 28 feet wide.

(T 10-22-98 p. 21) She indicated that they are going to maintain the 30 foot waterfront easement in "virtually all locations." (T 10-22-98 p. 23) The Board Attorney said, "Can I hear that last answer again, please? I heard the word virtually in there, didn’t I? Can I hear it again?" (T 10-22-98 p. 23)

The applicant’s planner said, "I pointed out earlier that we have at the southerly end of the site an extremely narrow portion of the site. We have proposed buildings that are as shallow as practical in order to allow for a reasonable number of rooms and a reasonable size of those rooms in order to be marketable." (T 10-22-98 p. 23-24) We’re not in a position to provide the total 30 foot waterfront easement. (T 10-22-98 p. 24)

She indicated that there is approximately 24 feet from the rear face of the buildings to the easterly edge of the sidewalk and that would be for approximately 120 linear feet. (T 10-22-98 p. 24) It is interesting to note that no one bothered to ask the planner why in order to comply with the 30 foot requirement of the ordinance. They simply didn’t reduce the number of brownstone buildings and move them back from the shoreline. She described the side elevation. The Brownstone buildings are three stories on the inner street front and four stories at the riverfront. (T 10-22-98 p. 28) She also testified that a considerable portion of the view of the Hudson River towards the shoreline of Weehawken is also impaired. Again reference was made to the site plan before the Board as an "illustrative site plan". (T 10-22-98 p. 42)

The planner concluded the testimony with no mention of the municipal Master Plan, did not talk about any affirmative and negative criteria for any variances, did not talk about any standards for waivers nor did she express any opinions as to whether or not the site plan complied with the requirements of the site plan ordinance of the municipality. The witness also testified that the driveway is 25 feet on the south end of the property and there is parallel parking which would take up approximately 6 feet and that would leave 18 feet for two-way traffic. (T 10-22-98 p. 45) She did not indicate whether the town ordinance permits an 18 foot two-way traffic road. It should also be noted that no mention was made of the state residential development regulations which have pre-empted conflicting municipal site plan regulations.

The planner was asked if units were moved back an additional eight feet could it be done and she indicated it would eliminate the parallel parking that consists of 8 to 10 spaces. (T 10-22-98 p. 46) The attorney identified the pending site plan documents as being those with a revision date of 8-27-98. The attorney for the applicant indicated that the 14 sheets of the plans had a revision date of 8-27-98. (T 10-22-98 p. 46)

The next witness called by the applicant was its civil engineer Jeffrey Lanza. (T 10-22-98 p. 47) The engineer indicated that since the final subdivision plat was filed about a year ago there were two lot line adjustments in the vicinity of the Brownstones right along the water’s edge. (T 10-22-98 p. 49) The record also reflects that Mr. Lanza was using a plan which shows six units on the left side and the site plan which their planner used shows only five units. (T 10-22-98 p. 52)

The Board attorney commented that the town engineer hadn’t had a chance to review Lanza’s report. (T 10-22-98 p. 63) The attorney for the applicant said, "That basically covers everything." (T 10-22-98 p. 63) The planner for the applicant acknowledged that the structures would be two to three feet to the bulkhead. The planner for the applicant indicated that "Parking layout has not been fixed so we’re being prudent and not tying into a road that we’re not sure of." (T 10-22-98 p. 68)

The Board attorney asked the engineer for the applicant if anywhere on the plan do they show parking spaces for guests. His response was ambiguous, "The cutout for them is shown for the curb cut is shown for them, but it’s not individually striped out, no." (T 10-22-98 p. 70)

The applicant’s planner said that the spaces between the two buildings is approximately 40 feet wide. The planner for the applicant testified they are not anticipating a dedicated parking area. (T 10-22-98 p. 77)

Mr. Goldberg testified that the design intent was to have perpendicular access to the waterfront walkway at the northerly and southerly end of the site. It was not anticipated that there would be public access. (T 10-22-98 p. 78)

The Mayor said to Mr. Goldberg, "At some point in time you will have to deal with the pedestrian access" and the witness responded, "I don’t have testimony on the counts." The Mayor said, "You really should supply it for the preliminary, the conceptual." The attorney said, "It has to be part of this. Someone has to tell us where that parking is." (T 10-22-98 p. 78-79) The Mayor said, "I think one of the things that we obviously want to see under the preliminary discussion is public access, pedestrian access, vehicular access, parking." (T 10-22-98 p. 80)

Mr. Rosa, the Board member, said "There’s no public access up there." Mr. Goldberg responded, "This walkway is not designed to be public access." (T 10-22-98 p. 81) Mr. Goldberg again said, "My testimony is that we have public access at the northerly and southerly portion of the site. The attorney said, "But you haven’t shown it on any plan at this point. You haven’t shown it on the south I can guarantee you. . . Mr. Goldberg, you have to assume this Board’s needs to see public access and compliance with the waterfront walkway as if this is the only thing that is going to be built on the waterfront." (T 10-22-98 p. 81)

The planner for the applicant said that the walkway is 2,625 feet long. The Mayor pointed out that that’s the point he was trying to make. It’s a very long distance. (T 10-22-98 p. 83-84) Mr. Goldberg indicated that there is a possibility that they are going to move the marina building." (T 10-22-98 p. 92)

In response to Mr. Dunn’s comment, "I don’t see why we shouldn’t see where the marina building is. Mr. Goldberg said that it’s across the street from Arthur’s Landing." (T 10-22-98 p. 93) The Board attorney indicated, "One of the things that we ask the applicant to do and we insist that the applicant do was that he show us exactly what was going to be done with each of the 66 acres that is included within this planned development as it’s proposed." (T 10-22-98 p. 132)

The Chairman said, "So in order for the Board to act at all it would seem that either concurrently or prior to any of the approvals for the individual site plans the conceptual plan would need to be approved as well." (T 10-22-98 p. 133) The attorney said that "We need to have proof with respect to the brownstones as to the view which is a triangle that starts at the point of Old Glory Park and ends at the vents of the Holland Tunnel on both sides of the River and you can’t build above the vertical angle that’s specified in the ordinance." (T 10-22-98 p. 148)

The Mayor made a fascinating comment, "Sometimes we have developers that say the last thing they want to do in the face of this world is to go before the Weehawken Planning Board so they go through the Board of Adjustment, which is why everything you have done down here now was Board of Adjustment approved." (T 10-22-98 p. 150-151)

MEETING OF NOVEMBER 5, 1998

The opening statement made by the Chairman was that it was a special meeting of the Weehawken Planning Board called in accordance with the Sunshine Laws of New Jersey.

The members present were Gould, Varsa, Kravitz, Cabrera, Rosas and Turner. The Chairman announced that the agenda was a continuation of a conceptual review and approval of the proposed planned development for all the blocks that we’ve been considering for the BB. (T 11-5-98 p. 4) The attorney for the applicant said this is the Brownstone application. (T 11-5-98 p. 5) The board attorney said, "Your now talking about the Brownstone development. You have an application for planned development that consists of 66 acres that involves the banana building, the existing marina, the existing restaurant, these Brownstone, a 300 unit assisted living facility and 120 units of housing. (T 11-5-98 p. 8) The attorney for the applicant added, "And the ferry terminal which was going to be relocated." (T 11-5-98 p. 9)

The first witness that was called by the Board attorney was Robert Jurasin who is a civil engineer. He was engaged by the Town. (T 11-5-98 p. 10) He indicated that he had prepared a written report which is dated November 5, 1998. (T 11-5-98 p. 10) Accordingly, no member of the public had an opportunity to inspect the report or to know anything about its contents. (T 11-5-98 p. 10)

He testified that he had an opportunity to review the plans submitted for the planned development. (T 11-5-98 p. 11) The plan is conceptual in nature and therefore the details of traffic, traffic access, parking, parking operations all need to be addressed and the detailed preliminary site plans for each of the individual sites."

The Board attorney said, "But what we have before us is a conceptual plan?" and he responded, "Yes." (T 11-5-98 p. 11-12) He was asked to express an opinion as to traffic volumes despite the fact that he had already said on page 11 that the details of traffic, traffic access, parking, parking operations need to be addressed. (T 11-5-98 p. 12)

He continued, "Even though the traffic volumes may be low traffic volumes as compared to the peak hour times that are out there today, it is important that traffic impact studies be undertaken to properly locate the site drives, to properly locate the parking and the internal circulation." (T 11-5-98 p. 12-13) A detailed traffic impact study should detail and address all of the issues that he summarized. He indicated that in the November 5 report which is dated the same day as the hearing, he has raised civil engineering issues that are not addressed in the preliminary site plan but actually do need to be addressed in terms of drainage, storm water sewerage, number of parking spaces, turning radius an design of the roadway. (T 11-5-98 p. 14)

There is less than a 30 foot right of way for the walkway and the banana building. That issues needs to be addressed. (T 11-5-98 p. 14)

The Board attorney said, "They do show a waterfront walkway that has a 30 foot easement except where it’s adjacent to the existing banana building. (T 11-5-98 p. 14) That statement by the Board attorney was not correct as is reflected in the other testimony of the witnesses.

The Board engineer also said that he has another problem that deals with the walkway adjacent to Arthur’s Landing that should also be resolved. (T 11-5-98 p. 14)

The Board attorney then said to the witness, "Let’s now talk about the Brownstone application. You have a second report dated November 5, 1998 with respect to the Brownstone. (T 11-5-98 p. 15) He indicated that the 58 Brownstone residential units would be low morning peak hour vehicles. (T 11-5-98 p. 15) He indicated that the a.m. and p.m. peak hours are clearly higher than the hours during the course of the rest of the day and weekends. (T 11-5-98 p. 16) He does not believe that the number of vehicles would over tax the road system. (T 11-5-98 p. 16)

He indicated that adequate site plan provision must be made for emergency vehicles and trucks and things and the ability of getting in and out of the driveways is important. (T 11-5-98 p. 17) Given the width of the private drive, given its proximity to Port Imperial Boulevard, and given the turning radii at each of the three driveways, our analysis indicates that it’d be very difficult for anything more than the normal vehicle, normal car if you will, to be able to make those turns and not impact the other lanes of traffic or actually even make the turn, so our concern as relates to emergency access" (T 11-5-98 p. 18) He indicated that his recommendation in his report indicates that emergency access to the facility needs to be developed somehow by arriving through the southern end of the Brownstone site or somehow through the northern end of the Brownstone site. (T 11-5-98 p. 18)

The drive is relatively close to the intersection of Port Imperial Boulevard and Avenue of Port Imperial and given the heavy flow of traffic to and from the ferry parking lot during the commuter hours we have concern even in low traffic volume hours from a safety point of view concerning that function and operations of that drive because of its close proximity to the larger, heavily traveled intersection. He recommends looking at the possibility of only allowing a right turn into the site and right turn out of the site thereby eliminating the conflicting left turn conflict that could occur that is critical to safety, or perhaps eliminating or relocating it completely. (T 11-5-98 p. 20)

The engineer also recommended that consideration be given to locate the southerly site drive On the Brownstone property because the latest plan has the Brownstone drive on the banana building property. (T 11-5-98 p. 20-21) The engineer recommends that the drive be located on the Brownstone property as opposed to being on the banana building property. (T 11-5-98 p. 21) With his recommendation being followed that would allow internal circulation without having to actually go out on the public roadway system. Having the access on the Brownstone property would detract whatever’s going into the banana building to use the Brownstone private drive. (T 11-5-98 p. 22)

With respect to the Port Imperial Boulevard and Avenue at Port Imperial intersection we need a plan to be developed such that the Avenue of Port Imperial actually is extended up to the existing Avenue. It obviously has to be done, otherwise the roads don’t connect to each other and he feels that rather than assume these things could be done the proper design plans should be prepared to actually show the connect. (T 11-5-98 p. 23)

He also recommends that there be a circulation plan shown for the Brownstone project without the reconstruction of the Boulevard and that the plan should have a detail as to what happens in this area in terms of pavement markings, traffic flow, number of lanes, traffic control, and the traffic volumes themselves to give everyone a high degree of confidence that the T-intersection does not become a bottle neck. (T 11-5-98 p. 24) The engineer also indicated he doesn’t know who is going to build pump station number 2. (T 11-5-98 p. 25)

With respect to the Brownstone units to be constructed, as you leave the Brownstone and the walkway proceeds past the restaurant the walkway is on top of the actual paved road for the drop off/pick up areas for the restaurant so they overlap each other. It’s not a separate walkway. (T 11-5-98 p. 27)

The Board engineer also indicated that a package of revised plans was delivered to him on October 29. (T 11-5-98 p. 28) It should be noted that at the conclusion of the testimony of Mr. Jurasin the public was not offered an opportunity to ask questions of him. Additionally, additional amended site plans were signed by the Engineer on November 6) Board member Kravitz expressed her concern that in no place was it specified where the people who want to use the walkway who are not using the ferry and who are not parking, where the private Brownstone are, where they are going to park either to use the field, the park facilities or to enjoy the walkway without having to pay a fee. (T 11-5-98 p. 31)

The Mayor said that the developer should take another look at how they could deal with bicycle and pedestrian access along Pershing Road. (T 11-5-98 p. 32) Mr. Jurasin said, "I couldn’t agree with you more. The traffic study, we listed a whole bunch of issues that should be addressed and the traffic study. It should include pedestrian and bicycle. The whole issue of transit accessibility as well as in addition to normal automobiles and emergency access." (T 11-5-98 p. 32)

Lanza, the engineer for the applicant, was called back to the stand. (T 11-5-98 p. 33) He indicated that they are showing the conditions in the area of the existing ferry terminal and the ferry terminal parking and there are a total of 2,294 parking spaces existing which is broken down by 116 existing parking stalls in one place, a parking field of 168 cars that serves the employees for Arthur’s Restaurant and restaurant parking, valet parking and the parking for the patrons of the ferry of 2,010 spaces. (T 11-5-98 p. 35) He then indicated that what is going to happen when you do the Brownstone, 28 parking stalls are going to have to be relocated because the Brownstone development sits right on top of them. He said as a result of the recommendations of the town engineer they are going to put additional parking for the general public to get access over the waterfront walkway. (T 11-5-98 p. 36) They are going to end up with 2,300 parking stalls which will be an even match with the 2,300 that are existing there now. (T 11-5-98 p. 37) (It is interesting to note that despite the fact that the new development, the total number of existing parking spaces in that area are not going to increase according to the testimony of Lanza).

The Board attorney, Mr. Dunn, said, "If nothing else ever gets built this Board has –- and the Board of Adjustment have very substantially controlled the parking that goes here." (T 11-5-98 p. 39) (This adverts to the fact that the Board of Adjustment had granted site plan and use variance approvals on this subject property, an issue which we will address more fully in our legal argument dealing with the lack of jurisdiction of the Planning Board).

At another point Mr. Lanza said, "We can’t build the Care Matrix facility because it’s going to take away the parking stalls obviously shown in the pink area here with the senior housing project. This is going to remove 453 parking stalls." (T 11-5-98 p. 40)

The Board attorney interjected, "The answer is then you’re going to have to submit a traffic report showing that with these additional parking spaces you’re not going to generate a traffic problem and you haven’t done that." The witness answered, "Right." (T 11-5-98 p. 41)

Lanza was asked, "How many spaces are we talking about for public use?" and the answer of the witness was, "At least 10." (T 11-5-98 p. 45) He then said that there would be 10 in this area and 25 down by the park area so there would be 45 public spaces total from the Brownstone south. (T 11-5-98 p. 46)

In response to the Mayor’s question the witness said, "So south of the banana building you have 25, north of the banana building you have 10, north of the townhouses you have 10?" and the answer of the witness was, "Right." (T 11-5-98 p. 48)

With respect to the intersection of Avenue of Port Imperial Mr. Lanza said, "This will be subject to the traffic report but the right turn out only at this north driveway is probably a logical restriction coming out of the site. There is still two-way traffic in here but a right turn only will probably be where we’ll end up going." (T 11-5-98 p. 51) He also indicated, "We’ll have to put signs in there. We’ll have to detail the intersection with signage and striping." (T 11-5-98 p. 52) He further said, "You won’t be able to come out that conveniently to get to that although if you jump to the signal and signals are here on the south, you may be able to do that also but it’s not too final." (T 11-5-98 p. 53)

A subdivision plat with a revision date of 10-29-98 was marked by the attorney for the applicant. (T 11-5-98 p. 54) (It was less than 10 days before the hearing). The witness indicated that the subdivision was approved about a year ago and since that time we made a couple of modifications to it and we’d like to file it this way. Among other changes is a change in the area where tennis courts are proposed from 5.3 to 6.08 acres. (T 11-5-98 p. 55)

Additionally, they made adjustments of the lot line "here and there" which results in the water shifting. (T 11-5-98 p. 55) On the northeastern one they are carving it out. (T 11-5-98 p. 55)

The Mayor said, "I know the subdivision for the Brownstone is important so that you can build the Brownstone, finance is separately and build the Brownstone." The attorney for the applicant said, "That’s correct." (T 11-5-98 p. 56)

It should be noted that at the November 5 meeting a whole series of new exhibits were marked having a date of 10-29-98. None of those documents were available for inspection 10 days before the hearing as required by the Land Use Act. The new exhibit showed in a light orange color the new road network that will be constructed on the Brownstone project. (T 11-5-98 p. 58) They also replace the right fork of the ferry road to include additional parking. (T 11-5-98 p. 59) It also shows the location of pump station number 2 and access for it. (T 11-5-98 p. 59) Mr. Jurasin interjected, "Just so it’s clear that you’re moving the driveway to the current parking lot away from the new intersection?" (T 11-5-98 p. 60)

Obviously, that was the first time that the Board Engineer saw the new plans. Mr. Jurasin then said, "And that relocated drive for the parking you have right up against the abutment for the bridges, you feel comfortable, you have adequate site distance so people coming out can see cars?" (T 11-5-98 p. 61) When the Board engineer raised the question as to whether they are going to provide proper curbing the witness responded "We will show the curbing in here to prevent anyone from veering off as they are used to doing today." (T 11-5-98 p. 63)

When questions were posed about necessary site distance the Board attorney said, "Why don’t you consult with Mr. Jurasin. He seemed to be skeptical that you have the necessary site distance. Once you consulted with him perhaps your accesses would change, but that doesn’t seem to be a detail the Board necessarily needs to be concerned with at this point. (T 11-5-98 p. 64)

It should be noted that necessary site distance is matter of enormous traffic safety input. It deals with whether or not vehicles making a particular traffic approach have a clear site of other traffic making the approach in a conflicting movement and yet the Board attorney said that’s something the Board doesn’t have to be "concerned with at this point."

The nature of the uncertainty of the site detail is exemplified by Lanza’s testifying that the restaurant parking is over here. That will stay here and once the building is built "then that gets moved over somewhere else. It gets realigned and blocked off as restaurant parking at that point." (T 11-5-98 p. 64-65)

Still another document was marked at A-32 and it is referred to as an undated Exhibit. (T 11-5-98 p. 65) You referred to it as the proposed waterfront walkway along the Brownstone. It shows the tail end of the north end, the Brownstone, the waterfront walkway coming along the waterfront and it shows where the marina is. He also indicate that the waterfront walkway has been moved and then you get to the area where there are obstructions. There is a mechanical equipment building right along the water edge and there is some screen walls. (T 11-5-98 p. 67) He said, "There’s too many things n the way." He said he thinks the safest way would be to continue straight across here. He said, "You have to get across to this to an island, another 15 or 18 feet back off the travel way for vehicles and then come down back to the waterfront walkway that way. So that’s what I think we’re going to end up detailing on the plans." (T 11-5-98 p. 67-68)

Another startling fact was revealed concerning all of the exhibits which were marked at the meeting of November 5 by the applicant is the fact that Mr. Jurasin had not received copies of those sheets as reflected by his statement, "Before Jeff sits down, can we request a copy of all these sheets." (Imagine a whole series of proposed modifications to the documents that were on file with the Board were discussed by the applicant and presented to the Board and the Board’s experts for the first time at the meeting of November 5 and shortly thereafter the Board voted approval in favor of the applicant).

In response to Mr. Jurasin’s question "Can we request a copy of all of these sheets" the applicant’s attorney said, "Absolutely". (T 11-5-98 p. 70) Mr. Jurasin said, "If they’re not in color at least designate which each element is". The witness said, "I have black and whites of these and I can show them to you." (T 11-5-98 p. 70)

The Board attorney said, "All right. Well, again it’s a resolution of an issue that a Board needs to consider." (T 11-5-98 p. 70) (And how could the Board have considered the issue when the documents which were related to the issue had not been given to the Board and had not been given to the Board’s engineer? At that point the attorney for the applicant said, "I think that completes it other than to say we did have an opportunity to review Mr. Jurasin’s report and we can address the other engineering comments that he raised in the report including insuring for, in fact, that the sheets represent that water does not run uphill." (T 11-5-98 p. 75)

And shortly after that comment and at the same meeting the Board voted approval.

At that point the Board called Jill Harman, its planner.

It should be noted that she had none of the many amendatory plans that had been marked in discussed by the applicant. She indicated that she did a fiscal impact of a project consisting of 300 assisted living senior citizen units, 120 low rise condominium housing units and 48-58 townhouse condominium units. (T 11-5-98 p. 71) She indicated that a full fiscal impact analysis report will be prepared by Professor Lispokein and she’ll be reviewing that. (T 11-5-98 p. 73-74)

Presumably the review will be after the Board’s approval and inasmuch as the Board approved the application on November 5. Her report dated November 4, 1998 was marked as an Exhibit B-3. (T 11-5-98 p. 74)

Obviously, the report had not been made available to the public. It is her zoning analysis. (T 11-5-98 p. 75) She analyzed the zoning ordinance as it currently exists with respect to the project which consists of 300 units of assisted living, 120 units of low rise condominiums and 58 townhouse units, the banana building modified for health club and catering facility, and relocation of the ferry." (T 11-5-98 p. 75)

She indicated plans should be provided with respect to buildings that rise above the townhouses and that there be specific proposals for rooftop treatments since the ordinance requires it. (T 11-5-98 p. 77)

She was asked by the Board attorney a whole series of questions about the zoning compliance. The questions were all leading and resulting in captious, conclusatory statements by the witness. She has reviewed the landscape plans for the Brownstone site plan and she would like to see more trees. (T 11-5-98 p. 78-79)

No opportunity for questions by the public was provided. The Chairman asked if the applicant has any additional testimony or response to anything that was said and the attorney said no. (T 11-5-98 p. 80-81)

The Chairman then indicated that what’s before the Board is a PUD which consists of all the elements that were being discussed earlier and specific sight plans for the Brownstone neighborhood. (T 11-5-98 p. 81)

The Chairman asked the attorney for the Board, "To figure out is there some way to look at the PUD and given the Town’s concerns and sentiments about, you know, some areas north of Pershing Road if there is some way we can look at splitting the PUD or at least approving elements of the PUD without fully approving other elements until we have looked at a larger plan, Master Plan, or larger plan for the north end of the town and at this time I would like to ask Tom, if he could, to comment on that." (T 11-5-98 p. 81)

The attorney then went into a lengthy discussion which went from page 81 to 87. Among other things he talked about allowing the Brownstone to go forward, "And perhaps the relocation of the ferry and the banana building need some work but the idea would be that a planned unit development, general concept plan would be approved, that would ratify the marina in its existing configuration with the modified parking, that would ratify the restaurant in its existing location. Keep in mind that these things were approved by the Board of Adjustment and unless the Board ratifies these things they are going back to the Board of Adjustment all the time for all kinds of things ant that really is not desirable in terms of overall development." (T 11-5-98 p. 82)

For the reasons which we will set forth in detail in our legal argument in this brief, again we have a confirmation of the fact that this site had the benefit of approvals by the Board of Adjustment and thus we will argue in our brief the applications which were approved on November 5 were not within the jurisdiction of the Planning Board and those applications were under the applicable law required to be made to the Board of Adjustment.

Somehow the Board attorney took the view that the Planning Board could pre-empt the jurisdiction of the Board of Adjustment. Imagine the Board attorney saying that it "Really is not desirable in terms of the overall development for the applicant to be before the Board of Adjustment?"

The attorney continued by saying a condition of the PUD would be that no site for the boat maintenance facility would be granted until the Board was satisfied with the park layout and the ferry location would involve a site plan approval and "obviously, there’s got to be traffic reports and things like in connection with site plan approval." (T 11-5-98 p. 83)

The attorney said with respect to the assisted living perhaps a suggestion that for the Board approve the concept of 300 units of assisted living, subject to precise location and configuration determinations. He then indicated a full series of conditions of approval. How did the attorney know whether or not the Board was going to vote to approve and yet he proceeded with a steadfast self-assurance that the Board was going to approve and he simply began to fill in some of the details.

He went on page 84 to articulate what he thinks the design should incorporate. He also then began hypothesizing about the lowrise housing and that it would have a similar approach and he talked about discussions with a review committee and the Board. (T 11-5-98 p. 85)

The functions of this review committee are amorphic and unclear and on page 85 he says, "The idea is that that again would be discussed with a review committee and the Board and that no approval of the specific configuration of those units would occur until after that discussion had taken place. (T 11-5-98 p. 85)

How does a Planning Board have discussions with a review committee that are not public discussions, that are not a part of the record, where the public doesn’t have notice of those discussions of the Planning Board with this amorphous committee? Can a committee and the Planning Board jointly come to conclusions at such meetings which are not conducted pursuant to the Open Public Meetings Act? Can such a committee and the Board create a veritable fait accompli without public participation and without public presence?

The attorney on page 86 referred to the Affordable Housing Ordinance which requires 20 percent of the units to be for affordable housing either by construction of the units or by RCAs and then to say, "You really don’t anticipate that there would be low income housing or moderate housing units in the Brownstone, that they may be a deferred obligation of the developer with respect to any future development of the property" is extraordinary and an inappropriate comment from the Board attorney.

What if the Brownstone are built and the developer doesn’t decide to do any further development? If the Mt. Laurel requirement of the Ordinance is the deferred obligation with respect to future development and the developer is not required to fulfill the Ordinance mandated obligation as part of the Brownstone development, doesn’t that require a variance? Such a variance was neither applied for nor required by the Board.

The Mayor then amplified on this committee appointed by the governing body. The Mayor indicated who the committee is. (T 11-5-98 p. 87) And then after the Mayor’s comment the Chairman said, "We’re going to open up for public comment." (T 11-5-98 p. 87) He did not advise the public that now they had a right to cross-examine all of the witnesses who testified in the case, including the witnesses for the applicant and the witnesses called by Mr. Dunn on behalf of the Board and yet the Land Use Act explicitly requires that objectors have a right of cross-examination.

At this meeting of November 5 as on the occasion of each of the previous hearings many objectors were permitted to offer comments but were not advised of their right to cross-examine witnesses who testified.

To emphasize that the only thing the public was invited to do was to make comments the Chairman said, "At this time, anybody else who would like to make a comment." (T 11-5-98 p. 98)

The Board attorney again interjected himself and again disclosed his disinclination to require the applicant to go to the Board of Adjustment. He again said, "One is to keep the marina without having to go back to the Board of Adjustment. I’m sorry. Another is to keep the restaurant without having to go back to the Board of Adjustment and another is to come in with a site plan for the Brownstone." (T 11-5-98 p. 100) Why was the Board attorney so obsessed about preventing the application to come before the Board of Adjustment?

The attorney then made the extraordinary statement that, "There would be an overall PUD approval subject to these conditions an then which would give the -- let the developer know that the concept of assisted living is fine but we need to work on the details and to make sure that it doesn’t interfere with the urban plan." (T 11-5-98 p. 101) How did the Board attorney know that the concept of assisted living is fine before the Board even deliberated and voted on the application?

The Chairman then said that the Planning Board, "through the committee" hopefully come up with an overall approach that will be conformable. (T 11-5-98 p. 101) The notion that decisions on a site plan and planned unit development application is going to be discussed and handled by a committee rather than by the Board in a public session on public notice to the public is bizarre and aberrant to the public participation imperatives of the Municipal Land Use Act.

The tentative of the proofs and the application to the Board is again exemplified by the additional comments of Mr. Jurasin, the engineer for the Board, when he said, "As we mentioned before, that intersection as a follow-up to my report is part of any potential conditions of approval, pavement, striping, direction of flow, traffic control and traffic volume, in that area was pointed to -- will be done and submitted for review to make sure we understand whether a traffic sign is sufficient or traffic signal or left turn versus a right turn, those sorts of things. . ." (T 11-5-98 p. 107)

But the very function of a site plan approval is for the Board, based upon competent evidence in the record, to decide all of those site plan critical issues before the vote of the Board approving the site plan.

This interminable reference to what will be done in the future apparently is anticipated to be done behind closed doors. Nothing in the Resolutions requires that there be additional hearings public in nature and pursuant to notice to the public. What about the right of the public to be present and to have its input by way of examination of witnesses and by way of affirmative testimony of their own to comment upon those further details which were deferred to some indeterminate time in the future which would occur in private and not at public meetings.

The whole attitude implicit in the process is that the public doesn’t have to be present at the review and decision-making process. Closed door discussions out of the presence of public scrutiny are an anathema to due process. The public has an absolute right to be present at the decision making process in Land Use matters.

During the continued discussions the Board attorney said, "Let’s take distance between buildings. Paragraph 3A, it says the distance between buildings shall be at least 60 feet at street level. Is it?" The response of the Board planner was, "We don’t have more than one building. All of these envelopes, all of these representative footprints are within a single building envelope. There’s one single building represented on the site plan. There’s no separation at all in the entire building envelope that has been identified on the site and that’s to allow flexibility to the place and interrelate a number of units." (T 11-5-98 p. 139)

The Board attorney said, "We understand that east/west street. That’s not the issue. I’m looking at the layout plan SB-5. I don’t know what Exhibit it is but it shows 40 feet between buildings. There’s no -- no -- I mean, I take it that this is a site plan that you’re asking to have approved and there’s no connection between those buildings shown on the site plan that you’re asking us to have approved. It’s 40 feet between buildings." (T 11-5-98 p. 140) A colloquy on the same subject:

THE CHAIRMAN: "You’ve indicated a break in the roadway when you enter that service road that’s in alignment with the cap that’s creating two sets of structures."

MS. HARTMANN: "Right."

THE CHAIRMAN: "But you’re maintaining that even though there is a gap there is still a single building?"

MS. HARTMANN: "It’s represented on the site plan."

THE BOARD ATTORNEY: "It’s not represented on the layout plan SB-5 as a single building."

THE BOARD PLANNER: "For what it’s worth, if you look at the right-hand side., it says building envelope and it does point to the dotted line and of course it also shows the 40 foot." (T 11-5-98 p. 141-142)

Peculiarly the Board attorney instead of simply saying it doesn’t comply with the requirements of the Ordinance said, "Why does it show 40 feet there? Why does it have to have that there? Well, you take it off." (T 11-5-98 p. 142) A member of the committee said, "But it is a separation between the two buildings."

The Board attorney, acting more like an advocate for the applicant said, "You’re saying there’s no - - this could be an entire wall?" The attorney for the applicant said, "No." (T 11-5-98 p. 142) The Board attorney said, "This has been presented to us as two -- not an entire wall but that there is a separation between the buildings. I think we ought to take a break because if it’s not that way, then there is a variance required or we’ve got to get some other testimony on this. This has not been the way it’s been presented to us. Take a break, we’ll take a break."

Immediately thereafter the transcripts reflects that a recess is taken. (T 11-5-98 p. 142)

What an extraordinary thing to happen. Why did the Board at the suggestion of the attorney go off the record when the inescapable facts reflected that there was only a 40 foot gap between buildings and the Ordinance required 60 feet? Was there to be a discussion between the Board and its representatives off the record? Was there to be a discussion with a representative of the applicant off the record?

The proceedings of a Board of Adjustment under the Land Use Act are required to be of record so that the entirety of the proceedings upon appeal to the Superior Court will be reflected in the transcript thereby making all of the proceedings subject to the scrutiny of a Superior Court Judge.

The record reflects that after the recess the Board went back on the public record and Mr. Dunn said, "What do you have to say Mr. Keinz?" (the attorney for the applicant) More importantly to the imperatives of due process is the question, what happened during the recess?

Who said what and to whom? Mr. Keinz said, "It says building envelope and it does point to the dotted line and of course it also shows the 40 foot." Again, the Board attorney interjected himself, "Why does it show 40 feet there?" Why does it have that there? Well, you take it off." (T 11-5-98 p. 142)

Where does the attorney for a Board have the authority to tell an applicant to take something off the plan that has been filed and which has been noticed?

A member of the Committee, Ms. Elsasser, then said, "But it is a separation between the two buildings." (T 11-5-98 p. 142)

Still another in a series of extraordinary comments by the Board attorney then occurred: "You’re saying there’s no -- this could be an entire wall." (T 11-5-98 p. 142) And to the credit of the attorney for the applicant he simply responded to the question by the attorney for the Board, "This could be an entire wall?" Mr. Kienz said, "No." (T 11-5-98 p. 142). This colloquy occurred before the recess.

After the recess Mr. Kienz said, "What we’re going to do is to extend that out to be 60 feet at ground level. That way there will be no question that that complies with the Ordinance." (T 11-5-98 p. 143) Apparently, Mr. Kienz got the message during the recess. He then added that on the northerly side where there’s a break in order to deal with that we will connect those buildings.

That was something that he said they were going to do and the Board instead of waiting to have the amended application and the amended plans submitted for its review and for the scrutiny of the public, the Board rushed into a approval that very night on November 5.

We don’t want to be hypercritical but much of the contents of the transcript reflects a blurred identity of experts. Ms. Hartmann was the planner for the Planning Board. On page 146, in speaking of Exhibit A-24 which was the Exhibit submitted for the first time on November 5 at the meeting, said, "This is Exhibit A-24 and what we have represented is the Pershing Boulevard intersection with our internal roadway system. . ."

She almost seems to have forgotten that it is not the Board’s Exhibit and that it is not the Board’s internal roadway system, but rather it is the Exhibit prepared by the applicant and it shows the applicant’s proposed internal roadway system. Why would the planner for the Board identify herself, i.e., "we have represented" and "with our internal roadway system"?

Why would she have confused and identified them to be her representation and her internal roadway system? The testimonial portion ended with Mr. Dunn telling a committee member that there is a 14 foot easement between the Brownstone and the actual walkway. (T 11-5-98 p. 148)

The Chairman thereupon said, "We’re going to close the public comment now and, Tom [the Board attorney] if he wants to try and summarize everything." (T 11-5-98 p. 148) Again, it emphasizes that the only public participation that had been permitted was public comment.

No opportunity for public cross-examination of the witnesses was announced nor provided. At that point the Board attorney made extensive comments from page 148 to 153. Let us recall that at this point the Board had not begun its deliberation. No motion had been made to approve or disapprove. One assumes that under proper protocol the Board attorney didn’t know what decision the Board would make and presumably he shouldn’t have known what conditions the Board would attach if it did approve.

Interestingly, when the Chairman asked him to try and summarize anything the Board attorney said, "I had looked forward to a proposal for conditions of granting." (T 11-5-98 p. 148-149) What led the attorney for the Board to believe that he should look forward to a proposal for conditions of granting? Had there been any off-the-record discussions which led him to believe that there would be a granting of the application subject to conditions? Needless to say, it would have been unlawful for such off-the record discussions to have occurred.

It was an extraordinary comment for a Board attorney to make before the members of the Board had not, at any rate not on the record, indicating that they were predisposed to approve. The attorney continued, "Let’s talk about the preliminary approval first of the PUD." (T 11-5-98 p. 149)

Shouldn’t the attorney have first abided the discussions of the Board to determine if the Board was disposed to give preliminary approval of the PUD? In his mindset that the Board was going to approve he then told the Board "The following things would be approved south of Pershing Road" and that the marina would be approved in its current configuration but that the parking configuration was to be shown as part of the Brownstone site plan, "which has been done tonight."

Who said that that was going to happen? How did the attorney know that that was going to happen? Most Board attorneys do not have prophetic powers. Obviously, the attorney knew what was going to happen. Common sense and a decent respect for rational inference tells us that the attorney before he made his comments knew what the Board was going to do. And, of course, they did exactly what he said they were going to do. The Board attorney continued in his extraordinary presentation by saying, "But on the Brownstone the PUD would give -- the PUD approval would give the developer the right to apply for site plan approval of the Brownstone." (T 11-5-98 p. 149)

He then began talking about the banana building. He indicated the Board would approve the concept of the use of the building for a health club and catering facility subject to conditions. First of all he seems to have forgotten that the banana building wasn’t going to be just for the health club and the catering facilities, it was going to be also for the office use of ARCORP Properties.

He says almost ex cathedral, "The Board does not endorse the parking layout as shown on the PUD plan." He said the parking layout for the banana building must minimize land coverage and not block access to the park from Harbor Boulevard. How could he at that time know what the Board was going to do except if he had off-the-record discussions with Board members? More importantly, how can they possibly approve the concept of a use of a building without knowing whether the parking provided is conformable to the requirements of the zoning ordinance?

After having said the Board would approve the concept of the banana building and then said the site plan for the banana building won’t be granted until the Board had received a report from the committee.

Again, the attorney continues saying, "The site plan for the existing ferry as approved by the Board of Adjustment is ratified substantially on the condition that the Board of Adjustment approve that the applicant may apply for site plan approval of the relocated ferry. He then goes on to say, "If parking spaces are built nearer to the ferry then an equivalent number of spaces must be removed." (T 11-5-98 p. 150-151)

Again, the attorney acknowledges that the existing ferry was approved by the Board of Adjustment and now the Board had before it an application to relocate the existing ferry. Again, the Planning Board does not have jurisdiction over this site plan application because the site plan for the ferry was approved by the Board of Adjustment. This sedulous insistence of not having the Board of Adjustment consider the matter raises many unanswered questions that go beyond merely jurisdictional issues.

Again, the attorney goes to assisted living and says "approve the concept of 300 units of assisted living is one component of the PUD subject to the precise location and configuration determinations." (T 11-5-98 p. 151) He then tells the Board what it will do, "The Board will not endorse any specific building configuration for the assisted living until a site plan has been submitted." The attorney then goes on to say the low rise housing "approve the concept of the 120 units of low rise housing near the water’s edge. Do not endorse the location of the housing immediately adjacent to the waterfront walkway or the configuration of the PUD. . ."

Again, the remarkable strain of presumption. The Board attorney is telling the Board what it will do. How did he know that the Board wanted to approve the concept of the 120 units of low rise housing near the water’s edge? If he knew that, it didn’t happen at the meeting and it had to happen in violation of the Municipal Land Use Act.

He then continues on page 152 by saying that the Board will, "Ratify the parking plans that were approved by the Board of Adjustment." Where is there anything in the Land Use Act to authorizing a Planning Board to ratify or reject or veto approvals of the Board of Adjustment? There is no such provision. We cannot help but repeatedly ask the rhetorical question why was the attorney for the Planning Board so anxious to have his Board usurp the jurisdiction of the Board of Adjustment?

The attorney continued and indicated the developer needs to comply with the Affordable Housing Ordinance and that’s a Brownstone site plan consideration and he said, "We need -- some of these are Brownstone. I’ll have to mix them in." (T 11-5-98 p. 153) He then said, "There are a number of things in Wilbur Smith’s engineering report that need to be resolved and I need the opportunity to review the full record to see if there are any other conditions." (T 11-5-98 p. 153)

The Mayor, upon the completion of the statements of the Board attorney said, "I feel very comfortable with it. I feel very comfortable with the outline that Mr. Dunn has prepared. I know we’ve talked about my feelings on the Brownstone and the banana building obviously speaks for itself. It’s been a dead building for many years. The park layout vis a vis the rest of the southern part of the facility, the layout will be determined at a later date and I think it’s a nice arrangement to deal with the 300 units and 120 units, not the building configuration and is submitted, until such time as a full PUD comes into effect, until such time as our review committee starts meeting. The committee also Mr. Dunn and Ms. Hartmann. So I will move a resolution or move the approval of the PUD as outlined by Mr. Dunn and second by Mr. Cabrera." (T 11-5-98 p. 154)

Two things that are remarkable, The Mayor said, "I know we talked about my feelings on the Brownstone." Who did the Mayor talk to. When did he talk to them? And then, how extraordinary the transcript reflects that in fact Mr. Cabrera did not second the motion of the Mayor. The Board attorney then conducted the roll call and Kravitz, Cabrera, Gould, Barsa, Rosas and Turner voted yes.

At the conclusion of the vote on the approval of the PUD application the Board attorney indicated that the application for the subdivision to the banana building area and the assisted living area has been withdrawn so the Board is approving a revised preliminary and final subdivision with respect to the Brownstone lot lines. And he said, "And you authorize the Chairman and the Secretary to sign a revised final map for the subdivision in that respect." (T 11-5-98 p. 155)

Mr. Barsa then made a motion "for approval of the final site plan as amended". (T 11-5-98 p. 156-157) Mr. Dunn then interjected, "If there are things in Wilbur Smith’s report on the subdivision they also have to be included as conditions." It was seconded by Mr. Rosas. Board members Kravitz, Cabrera, Gould, Barsa, Rosas voted in favor. (T 11-5-98 p. 157)

After the vote on the final site plan approval Mr. Dunn said, "Now on the Brownstone, the items I had on the list are from last week. And the things have been -– all of those things have been done in dealing with –- I’m not sure –- they have not been reviewed by Wilbur Smith, but they’ve been done. The reconfigurative waterfront walkway at the north end, the horizontal access for the waterfront walkway at the south end, the public parking associated north and south reconfigured to provide a full 30-foot waterfront of walkway easement at the south, have all been –- have all been –- the testimony tonight is that they are shown on the plans. Wilbur Smith needs to review these as a condition to approval." (T 11-5-98 p. 157-158)

The attorney then went on saying that the landscape is subject to review. The plans have to be revised to show 60 feet between buildings. We have to address the point about means of satisfactory to Wilbur Smith to prevent restaurant parking on the waterfront Walkway. We have to be sure there is a complete set of plans showing everything that is to be built in the first phase in connection with the Brownstone including the sidewalks that were referred to and the last testimony, all compliance with the affordable housing." (T 11-5-98 p. 158) and then despite his prior comments that the set aside units have to be part of the Brownstone units he added, "My recommendation is that you provide -- that the set aside units to be built be deferred until future phases of development . . ." (T 11-5-98 p. 158)

He then added that everything will have to be subject to compliance with all of the engineering reports that they have form Wilbur Smith and subject "to such other conditions after review of the transcript that I deem to be necessary and I think I already said it has to be revised to show 60 feet." (T 11-5-98 p. 159)

Absolutely extraordinary comments by the Board attorney. All of the engineering datum, revisions and modifications were required to be submitted to the Board, made available for public inspection, considered at a meeting of the Board and then the Board would be in a position to vote upon the application as amended by all of the additional plans. It’s hard to understand where the attorney for the Board got the notion that conditions that would be attached are those that he, the attorney, "deemed to be necessary".

That presumably means that there is going to be an off-the-record transaction by the attorney in which he in camera somewhere review all of the engineering reports from the Planning Board engineer and he decides what is necessary to be done. And who reviews what the lawyer thinks should be done? When does the public get a right to hear and find out what the lawyer thinks should be done? When does the public have a right to comment upon the things that the lawyer thinks should be done. When does the public have a right to cross-examine the experts concerning those things which the lawyer thinks should be done?

It was a bizarre and extraordinary usurpation by the attorney of the authority of the Board and it was a bold face intrusion upon the imperatives of the Land Use Act that the public be present when the decisions as to approval are made.

Immediately before the vote by the Board on the approval of the Brownstone site plan Mr. Dunn said, "Traffic and civil engineering issues about the intersection that need to be reviewed". (T 11-5-98 p. 159) A motion was made by Mr. Cabrera, seconded by Ms. Kravitz, and the vote in favor was by Kravitz, Cabrera, Gould, Barsa, Rosas and Turner.

LEGAL ARGUMENT
POINT I

THE PLANNING BOARD LACKED JURISDICTION
BECAUSE THE ZONING BOARD OF ADJUSTMENT
HAD GRANTED PRIOR APPROVALS FOR THE PROPERTY.

If an applicant is before the wrong board any action taken is a nullity. Trinity Baptist v. Scott, 219 N.J. Super. 490 (App. Div. 1987) Inasmuch as the record reflects that the Board of Adjustment had in the past granted approvals on the subject land; it had exclusive jurisdiction to consider the site plan, the PUD and the subdivision. See Cox N.J. Zoning & Land Use Administration, §14-3.3. See also N.J.S.A. 40:55D-76(b).

The Board of Adjustment has in the past extensively exercised jurisdiction and granted relief for the subject property. Those approvals occurred in 1986, 1987, 1989, 1990, 1991, 1992, 1993 and 1994 and 1996.

1. In 1986 the Board of Adjustment granted a use variance and site plan approval for a ferry terminal and parking facility for 480 vehicles. The resolution was adopted by the Board of Adjustment on November 24, 1986. The present application seeks to relocate the ferry terminal.

2. In 1987 ARCORP Properties applied before the Board of Adjustment for a variance to expand the existing Marina which had been approved in 1985. The Board of Adjustment denied the application.

3. Three months later on July 20, 1987 the Board granted the variance and site plan approval to expand the existing Marina.

4. The Board of Adjustment approved ARCORP Properties’ application for site plan and variances concerning the Marina.

5. In 1989 the Board of Adjustment granted ARCORP Properties’ application to expand its ferry service facilities. That action was taken on December 20, 1989.

6. On January 17, 1990 the Board of Adjustment again granted variances and site plan approval for expansion of the parking facilities provided for the ARCORP Properties’ ferry.

7. On July 11, 1990 the Board of Adjustment again granted a use variance and site plan approval for expansion of the parking facilities provided for the ferry together with recreational facilities and an outdoor cafe adjacent to the existing restaurant.

8. On December 20, 1990, the Board of Adjustment granted approval for use and other variances to expand and improve the Port Imperial Facility/Marina/Restaurant Complex.

9. In 1990 the Board of Adjustment again granted a use variance to expand the Port Imperial parking lot.

10. On September 18, 1991 the Board of Adjustment gave site plan approval, use variance and bulk variances to again expand the existing ferry parking lot by 580 spaces and to modify the existing Marina breakwater.

11. On October 2, 1991 the Board of Adjustment again granted ARCORP Properties’ site plan approval, use variance and bulk variances for ferry terminal parking lot expansion.

12. On July 15, 1992 the Board of Adjustment approved the application of ARCORP Properties for use and variances to expand and improve the Port Imperial ferry/marina/restaurant complex.

13. On May 5, 1993 the Board of Adjustment granted site plan approval and use variance approval for additional parking for Port Imperial Terminal.

14. On August 3, 1994 the Board of Adjustment granted ARCORP Properties’ site plan approval and use variance for the additional parking at the Port Imperial ferry/marina/restaurant complex.

15. On June 15, 1994 the Board of Adjustment granted ARCORP Properties’ site plan approval, use variance and bulk variances for the existing warehouse office parking known as United Fruit Terminal "the Banana Building".

16. On June 15, 1994 the Board of Adjustment granted site plan approval use variance and bulk variances to renovate the Banana Building.

17. In March of 1994 the Board granted ARCORP Properties’ site plan approval, use variance and bulk variance for the Banana Building.

18. On April 6, 1994 the Board of Adjustment granted site plan approval to widen the Port Imperial Boulevard and erect entry gates.

19. On July 17, 1996 the Board of Adjustment granted ARCORP Properties’ approval for a marina, restaurant, accessory use in parking areas, apartment, warehouse, road widening, signage, ferry operation, river walkway, bicycle/jogging path, helipad, use variance for fitness center in the existing warehouse (Banana Building).

The assumption of jurisdiction by the Planning Board was improper and the approvals are void by reason of lack of jurisdiction.

POINT II

THE PLANS WHICH WERE APPROVED BY THE BOARD
WERE NOT FILED WITHIN THE TIME PROVIDED BY
THE MLUA NOR WERE THEY MADE AVAILABLE FOR
INSPECTION BY THE OBJECTORS NOW WERE
OBJECTORS GIVEN AN OPPORTUNITY OF CROSS-
EXAMINATION OF THE WITNESSES IN CONNECTION
WITH THE PLANS. ADDITIONALLY THE BOARD DID
NOT HAVE THE PLANS AT THE TIME THEY VOTED
TO APPROVE THE APPLICATION.

Under the provisions of N.J.S.A. 40:55D-10 "any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least ten days before the date of the hearing during the normal business hours in the office of the administrative officer." Under the provisions of N.J.S.A. 40:55D-10D the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented or directly if not represented.

The Board at the meeting of November 5, 1998 adopted resolutions of approval which approved the subdivision which approved the planned unit development and which approved the Brownstone site plan. One would normally assume that a planning board does not approve plans which they do not have and which have not been reviewed. What are the relevant facts in this case?

The plans in support of the application which was approved consist of 14 plans identified as sheets SB-1 through 14. As a matter of logic one assumes that a plan, before it is approved, has received the benefit of review by the board’s experts; testimony by experts of the applicant; cross-examination by objectors; and of course, one assumes most of all that the plans approved existed as part of the record before the approval of the plans and the application. Let us consider each of the plans.

1. SB-1 is the cover sheet. It has an original date of August 27, 1998. It has a revision date of October 29, 1998. It has a signature of the Engineer of November 6, 1998. The signature was one day after the approval. The revision date was seven days before the approval. Additionally the cover sheet fails to list Block 45, Lots 6, 7, 8 and 9 as part of the site even though they are listed in the application as part of the site.

2. SB-2 is the key map. It has an original date of August 27, 1998. It has a revision date of October 29, 1998. It has a signature of the Engineer of October 30, 1998. The revision and the signature dates are less than ten days before the November 5, 1998 hearing at which the board approved the application.

3. SB-3 is the subdivision plan. It has an original date of August 27, 1998. It has a revision date of October 29, 1998. It has a signature of the Surveyor of October 30, 1998. Again the revision and the signature dates are less than ten days before the November 5, 1998 hearing.

4. SB-4 is the demolition plan. It has an original date of August 27, 1998. It has a revision date of October 29, 1998. It has a signature of the Engineer of October 30, 1998. Again the revision and the signature dates are less than the ten days prefiling required by the Land Use Act.

5. SB-5 is the layout plan for the Brownstone town houses. It has an original date of August 27, 1998. It has revision dates of October 29 and November 6, 1998. It has a signature of the Engineer of November 6, 1998, one day after the board approval. Again the revisions and the signature dates were less than ten days before the November 5, 1998 meeting when the board approved the subdivision. It is important also to note that the subdivision plan in fact depicts the building with a separation of 40 feet rather than the 60 feet requirement required by the ordinance. Additionally there is another separation at the right end of the building of only 7.5 feet between the buildings. Someone has penned in 60 feet separation. In fact the actual feet is 40. The layout shows 22 buildings. It does not indicate the number of townhouses in the building which contains a note "mix of A, B, and C units subject to variation and change in order and quantity."

6. SB-6 is the interior grading and roadway layout plan for the Brownstone. It has an original date of August 27, 1998. It has revision dates of October 29 and November 6, 1998. It has a signature by the Engineer of November 6, 1998. Again, there is failure of compliance with the ten day requirement of the statute. Again, there is the very bizarre phenomena of the plan being signed by the Engineer the day after the board had already approved the application and the plans. Again, the separation of the building is 40 feet rather than the 60 feet requirement of the ordinance and again, the separation of the building on the right is 7.5 feet.

7. SB-7 is the grading plan. It has an original date of August 27, 1998. It has revision dates of October 29 and November 6, 1998. It has a signature by the Engineer of November 6, 1998. Again, there is failure of compliance with the ten day requirement of the statute.

8. SB-8 is the drainage and utility plan. It has an original date of August 27, 1998. It has a revision date of October 29, 1998. It has a signature by the Engineer of November 6, 1998. Again, there is failure of compliance with the ten day requirement of the statute. Additionally, the drainage and utility plan shows the separation of the buildings of 40 feet and 7.5 feet rather than 60 feet as required by the ordinance.

9. SB-9 is the landscape and lighting plan. It has an original date of August 27, 1998. It has a signature by the Engineer of October 30, 1998. Again, failure of compliance with the ten day requirement of the statute. This plan also shows the 40 feet and 7.5 feet separation between the building. It also shows that even as to the 40 feet it is not an obstruction of the view corridor since the presence of light poles and trees leaves only an unobstructed view corridor of 10 feet.

10. SB-10 is the storm sewer detail plan. It has an original date of August 27, 1998. It has revision dates of October 29 and November 6, 1998. It has a signature by the Engineer of November 6, 1998. Again, there is failure of compliance with the ten day requirement of the statute.

11. SB-11 is the water and sanitary sewer plan. It has an original date of August 27, 1998. It has a revision date of October 30, 1998. It has a signature by the Engineer of October 30, 1998. Again, failure of compliance with the ten day requirement of the statute.

12. SB-12 is miscellaneous details. It has an original date of August 27, 1998. It has a revision date of November 6, 1998. It has a signature by the Engineer of November 6, 1998. Again, failure of compliance with the ten day requirement of the statute.

13. SB-13 is the typical roadway sections and landscaped details. It has an original date of August 27, 1998. It has a revision date of October 29, 1998. It has a signature by the Engineer of October 30, 1998. Again, failure of compliance with the ten day requirement of the statute.

14. SB-14 is the waterfront walkway details. It has an original date of August 27, 1998. It has a revision date of November 6, 1998. It has a signature by the Engineer of November 6, 1998. Again, failure of compliance with the ten day requirement of the statute.

Here, we have the phenomena of site plans being approved by a board on November 5, none of which were on file in the office of the board ten days prior to the November 5 hearing at which the board approved the site plans. Similarly the subdivision plan and the PUD plan which were approved were not on file ten days before the hearing. The statute requires the documents to be on file ten days before the hearing. There were not. In fact most of them were signed by the Engineer and the Surveyor after the board had already approved the plans. The objectors had a right to see the plans with their revisions before they were approved by the board. They had a right to cross-examine the experts in connection with the revisions. In fact as is reflected in the transcript of the meeting of November 5 the experts for the board did not even have the revised plans and the board’s engineer asked on the record that he be furnished with copies of the revised plans and the applicant’s attorney indicated he would send them. The board accordingly acted unlawfully on November 5 since the revised plans had not been filed with the Planning Board at that time; had not been reviewed by the board’s experts; had not been reviewed by the board itself; and the public had been deprived of the opportunity to review them and ask questions concerning them.

POINT III

USE VARIANCES WERE REQUIRED AND WERE

NEITHER APPLIED FOR NOR GRANTED NOR

DID THE PLANNING BOARD HAVE AUTHORITY

TO GRANT USE VARIANCES.

The zoning map of the municipality reflects that the property, which is the subject of the approvals, is located partially in the industrial zone, partially in the B-2 zone and partially in the B-3 zone. The property is also included in the overlay planned development district. Additionally the subject property is divided into discret lots which have not been merged into a single lot. The ferry maintenance facility is located on block 36.05, lot 201 and is located in the industrial park zone. Additionally, on block 36.05, lot 201 there are tennis courts and parking accessorial to the banana building which is located on a separate lot 101 block 45.01. Block 45.01 lot 101 has the proposed catering hall, a proposed health club and a proposed office facility. It also has tennis courts which are accessorial to the Brownstone units which are on the adjoining block 45.01 lot 4.01. Block 45.01 is located in the industrial zone. The Brownstone townhouses are located on block 45.01, lots 301 and 401 and are located in the industrial zone. Block 64.01, lot 1.01 is located in the B-2 zone and it contains extensive parking which is accessorial to the proposed relocated ferry terminal which is located on Block 64.01, lot 2.01 which is located in the B-3 zone.

The presentation before the board proceeded on the assumption that lot and blocks located in particular districts were not subject to the constraints of the particular district for each lot. The assumption seemed to be that somehow the overlay of planned unit development obliterated the zone district differentiation between the industrial zoned property, the B-2 zoned property and the B-3 zone property. In fact the use constraints and the bulk requirements for each of the zone districts were applicable to the individual lots located in each of the different zone districts. The location of the ferry maintenance facility on block 36.05 lot 1, which is located in the industrial zone is not a permitted use in an industrial park pursuant to section 23-5.11. A use variance accordingly was required and was granted in the past by the Board of Adjustment. The parking on block 64.01, lot 1.01 is accessorial to the proposed relocated ferry terminal. A parking lot is not a permitted use in a B-2 zone. Parking is permitted in a B-2 zone accessorial to a principal use which is permitted and located on the block and lot which is located in the B-2 zone. Accordingly a use variance is required for block 64.01 lot 1.01. The proposed relocated ferry terminal is located on block 64.01 lot 2.01 in the B-3 zone. It is not a permitted use in the B-3 zone. See section 23.5.10. Accordingly a use variance is required. The location of the large parking lot on block 64.01, lot 1.01 in the B-2 zone which is the outdoor recreational zone is not a permitted use. See section 23-5.9. A use variance is required. Brownstone buildings located on block 45.01, lot 4.01 are located in the industrial park zone. Residential is not a permitted use in the I-residential zone. See section 23-5.11.

The proposed catering, health club and office facility in the banana building located on block 45.01, lot 1.01 is located also in the industrial zone. Neither a catering hall nor health club nor an office facility are permitted in the industrial park I zone. See section 23-5.11. The provisions of the planned unit development use section does not mean that the use constraints for the individual lots arising from the continued zone classifications of industrial, B-2 and B-3 thereby become obliterated. The planned unit development constraints apply to the entirety of the planned unit development and indicate what facilities can be appropriately used within the parameters of the planned unit development. Nothing in the use ordinance asserts that individual sites on individual lots with disparate zone district classifications are exempt from compliance with the use and bulk standards for the individual lots. Clearly the intendment of the Planned Development Ordinance as reflected in section 23-10.4(a)(1) is to allow "a general plan or plans for development of the entire planned district." It does not surgically excise and eliminate the zone district classifications as is further reflected in section 23-10.2 which speaks about a Planned development area overlay and says "which area encompasses the industrial park, office park, outdoor recreation and special waterfront zones as shown on such map." [zoning map] It is the entire planned development district which is the subject of the planned development application. The planned development regulations in the ordinance, in order to preempt the zone classifications of both use and bulk for the industrial zone, the B-2 and B-3 zone, must be conformable to the requirements of the municipal land use act. N.J.S.A. 40:55D-45 requires that:

The requirement of the statute is that the ordinance which permits planned developments must contain the language requiring that prior to approval, the findings of fact in subsection a must be made. N.J.S.A. 40:55D-65 deals with the contents of the zoning ordinance and permits an ordinance to provide for planned development districts

Unquestionably section 65 permits the ordinance to provide different density or intensity development than otherwise allowable. However, in order to avail itself of that option in the ordinance the municipality must, pursuant to N.J.S.A. 40:55D-45, have the ordinance include the mandatory language. Since the planned development component of the ordinance does not comply with 40:55D-45 the use and bulk zone requirements of the I, B-2 and B-3 zones are applicable. The intended uses and the configuration do not comply and variances were required.

It should also be noted that the planned unit ordinance in subsection d on page 2378 specifically provides that:

Schedule A provides maximum density, minimum lot size, minimum lot width, minimum front yard, minimum rear yard, minimum side yard, maximum coverage, maximum height bulk requirements for among others, the B-2 outdoor recreation zone, the B-3 office park zone, and the I industrial park zone but, it does not provide any bulk standards for the planned development. Both because the Board of Adjustment granted multiple use variances for the property in the past and because the present application requires new use variances, the Planning Board lacked jurisdiction over all of the relief requested. The entirety of the application was required to be heard by the Board of Adjustment.

POINT IV

THE PLANNED UNIT APPROVAL IS INVALID

BECAUSE IT DOES NOT COMPLY WITH PLANNED

DEVELOPMENT PROVISIONS OF THE MUNICIPAL

LAND USE ACT.

N.J.S.A. 40:55D-45.1 requires that the general planned development plan

The planned development plan does not comply with that provision and accordingly the approval is invalid. It is important to note that section 45.1 deals with what is mandatorily required. Section 45.2 deals with optional inclusions in the general development plan. Subsection 23-10.4(a)(2) further requires that the utilities must be demonstrated to be adequate and complete for the planned development in each stage thereof and will be an integral part of the general plan or plans for the development of all such utilities in the entire planned development district. Similarly the traffic plan for the entire planned development district must be submitted. Similarly pedestrian access must be demonstrated under subsection 4 to be adequate and an integral part of the general plan for the entire planned development district. Additionally, under subsection 6, the planned development application must demonstrate that the planned development in each stage will be a marketable development and will not have any substantial adverse physical impact on the town. Under subsection 7 the planned development must show that in each stage it will not cause substantial adverse environmental impact. The environmental impact statement dated July 1998 does not deal with the entire planned development district but rather only deals with Port Imperial South. In fact the proofs as to the impact upon the entire planned development district and the datum analysis dealing with the central resident neighborhood and the mid town neighborhood was not provided by testimony or evidence in the record. The environmental impact statement on page 3-2 states that

That constitutes an admission that a bulk variance was required for the number and dimensions of parking spaces for the office uses. No application was filed for such a variance. None was granted.