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 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)