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20. On page 18 in the top paragraph, the Resolution says, "The Board needs further proof that the assisted living and 120 of lowrise will not impact the urban design for the balance of the property and therefore intends to impose specific conditions as set forth in section 3." But before the Board can approve the planned development application it must first find that it will not impact upon the urban design for the balance of the property. It was not complicated. The Board should simply have done what the Ordinance says. It should have told the applicant, "We cannot approve your application because you have not complied with the requirements of our Planned Unit Development Ordinance." Instead, it approved the application despite its lack of compliance with the ordinance and where an application doesn’t comply with the requirements of an Ordinance, the applicant makes a request for a variance or a waiver, as the case may be, and the Board then applies the standards of the Ordinance to determine if the variance or waiver is appropriate. Since the Planned Unit Development components are part of the zoning Ordinance, any departures requires a variance. None was granted.

21. On page 18 the Board deals with sewers, sewerage treatment, water and storm sewers. Let us be mindful of the November 5 report of the Board’s engineer which tells us of the inadequacy of the submission as to these utilities.

22. The treatment of traffic and mass transit in the Resolution which begins on page 19 is still another example of the arbitrariness of the Board. It begins by citing section 23-10.4(a)3 of the zoning Ordinance which requires the applicant to demonstrate that "the means of vehicular and mass transit access to the planned development will be adequate and complete for the planned development and each stage thereof; will be an integral part of a general plan or plans for development of vehicles and mass transit access for the entire planned development district; and can be accomplished without substantial new congestion to streets and intersections in other districts of the Township." The resolution then reflects that the traffic engineer for the applicant testified that, "The traffic impact assessment, an extensive traffic impact study for the overall planned development is being conducted and when completed will include analysis of the development’s impact on the surrounding roadway." But the Ordinance section which the Board cites on page 19 requires that the traffic assessment must be adequate and complete for the planned development in each stage thereof. Well, if the Ordinance requires the assessment for the planned development in each stage thereof, why didn’t the Board simply say to the applicant, "When you have the extensive traffic impact study for the overall planned development come back and we’ll reschedule the matter for continued hearings so that we can hear testimony, provide the opportunity to the public to review the traffic impact study and we will permit testimony to be received and members of the public to cross-examine Mr. Maras." That’s what they should have done under the ordinance. It’s not a case in which the Board in its Resolution is not mindful of the requirement of the Ordinance because they cite the Ordinance. It’s hard to resist the temptation to say that the Board was contumacious of the requirements of their own Ordinance. How could they possibly have concluded that the requirements of the ordinance have been complied with? How could they have disregarded what Mr. Jurasin, the Board engineer, said in his November 5 report B-2 which we have already referred to, about serious problems of site access, incapacity to handle emergency vehicles, site distance limitations, safe and efficient traffic operations at the intersections. The answer to the rhetorical question which we have posed is that it was not difficult for the Board to do it because it was acting arbitrarily, capriciously, and unreasonably.

23. The Board then goes to what one would think is a matter of utmost concern and that deals with pedestrian access. On page 20 they point out that section 23-10.4a4 which requires a planned development applicant to "provide adequate and complete pedestrian access which shall be an integral part of pedestrian access plans for the entire planned development district and which shall encourage integration of the planned development with the remainder of the Township." The Ordinance standard doesn’t say that the pedestrian access plan is limited to a particular site plan application of a portion of the entire planned development. Rather, the Ordinance requires that the pedestrian access plans must be submitted for the entire planned development. The Board concluded that the pedestrian access plan for the townhouse development is satisfactory but that future site plans will require pedestrian access to be addressed more specifically. That’s not what the ordinance requires. This Board apparently didn’t understand that what it should require of the applicant is what the ordinance requires of the applicant. The Board seems to have forgotten that the November 5 report of its engineer which was marked B-2 is a separate report concerning the brownstone component. Among other things, the report raises questions of safe and efficient traffic operations at intersections including site distance for safety purposes. How could the Board have possibly concluded as it does on page 20 that the requirements of section 23-10.4a.4 as to the planned development application have been satisfied.

24. Their own analysis on page 20 demonstrates that it has not been satisfied. The Board then considers on page 20 the waterfront walkway. Among other things, the Board says that the plan has an exception of approximately 120 linear feet in the vicinity of the townhouses where the mandatory width would be reduced, that of course would require a variance. The Board then says, "Prior to building permits for each development parcel, Roseland is to demonstrate integration of the waterfront walkway for the development parcel with other sections of walkway theretofore built and other pedestrian circulation sections. That’s not what the Ordinance requirement is. The integration of the waterfront walkway is required to be part of the application for preliminary planned development approval. The Board then says that Roseland has agreed to modify its plans to show a 30 foot wide easement at all locations. But in order to determine what changes in the plan are triggered by increasing the size of the easement area, it would be necessary to have the plan before the Board so it can be reviewed by the public, reviewed by the Board’s engineer and reviewed by the Board with an opportunity for questioning of the engineer not only by the Board but by the public. Again, the rational and appropriate thing for the Board to have done was to continue the hearing on November 5 to a new date and this issue would have been addressed on the record and based upon revised drawings showing the elimination of the 120 linear feet in the vicinity of the townhouses and how the additional easement width will impact the location of buildings and other structures and parking. The Board concludes on page 22 that when each site plan has been approved and an appropriate easement has been recorded, Roseland will have complied with the requirements of section 23-10.4a.5. But what happens if Brownstone is built and the developer doesn’t proceed with the other portions of the planned unit development. Again, the rational thing for the Board to have done was to require before the approval of the planned development application a demonstration of walkway compliance.

25. Let us now consider fiscal impact in the Resolution as reflected on page 22. The Resolution begins by correctly asserting that the applicant is required to demonstrate that the planned development will not have any adverse fiscal impact on the township. The Board immediately follows that by saying, "Based upon the study prepared by PANJ dated November 1, 1998 the Board finds that the planned development should produce a net gain in tax revenues of approximately $1,700,000.00 and that the project will therefore have a positive fiscal impact." In fact, the fiscal impact analysis prepared by PANJ was dated November 5, 1998 which is the date of the meeting of the planning board at which the planned development application was approved. It has been marked as B-3. The fiscal analysis which was done was for 300 units of assisted independent living senior citizen housing, 120 units of lowrise condominium non-age restricted housing and 48 units of townhouse condominium non- age restricted housing. In fact, the number of townhouse units proposed is between 44 and 58 as reflected on page 6 of the Resolution, i.e., "construction of 44 to 58 townhouses." It is also interesting to note that in the Notice to Property Owners the notice indicates, "for approximately 55 new Brownstone housing units." Accordingly, the PANJ fiscal analysis had the wrong number of townhouse condominiums in it. Additionally, the fiscal analysis did not consider the proposed relocated ferry terminal. It did not consider the banana building conversion consisting of a catering facility of approximately 30,000 square feet, a health club facility of approximately 75,000 square feet, and 15,000 square feet of office space as reflected in section 5 of the Notice to Property Owners. Accordingly, the November 5, 1998 fiscal impact analysis of PANJ was fundamentally flawed, incomplete and did not constitute a basis for the conclusion that the planned development project would have a positive fiscal impact. The fiscal impact analysis which she made did not take into account the total project proposed in the planned development and to suggest that a conservative estimate of the value of the proposed development is $114,700,700 is fanciful and the mere guess by the planner who has no appraisal expertise. The Board should have required, as does the ordinance, that the applicant demonstrate that the planned development will not have any adverse fiscal impact on the Township.

27. The environmental impact issue is dealt with on page 23 and the Board begins by referring to section 23-10.4a7, requirement of the Ordinance that the applicant for a planned development must demonstrate that the project will not cause any substantial adverse environmental impacts. The Board found that based upon the environmental impact statement prepared by the applicant’s engineers that the requirement of the Ordinance has been satisfied. The environmental impact statement must support the absence of substantial adverse environmental impacts for the project, i.e., the planned development.

An environmental impact statement dealing only with a part of the development is not compliant to the ordinance requirements. The environmental impact statement dated July 1998 upon which the Board relies describes on page I-1 the project to consist "of the development of several distinct residential neighborhoods and related roadway infrastructure. The construction of a new ferry terminal and maintenance facility are accessory uses to this planned development." That is only a part of the planned unit proposed development. What about the restaurant which is going to continue to be used.

What about the new parking which will be required for the new facilities? What about the renovation of the banana building to include a 30,000 square foot catering hall; a 75,000 square foot health club? What about 15,000 square feet of office space all of which are reflected on page 6 of the Resolution? Consider that that analysis doesn’t even deal with the entire site on page 2.2. The environmental impact statement lists lots and blocks of the project. It does not include block 45, lots 6, 7, 8 and 9. Part of the problem probably arises from the fact that that the plans prepared by the engineer don’t list block 45, lots 6, 7, 8 and 9 even though the Resolution does.

The environmental impact statement is further defective in that it assumes that the brownstone residential units will be 48. Again, that is in conflict with what the Resolution says and what the Notice to Property Owners says. The report says on page 3.2 that the off-street parking and loading requirements will be the same for the PD zone as set forth in sections 23-9.2 through 23-9.15 of the Zoning Ordinance with the exception of slight modifications for the number and dimensions of parking spaces for the proposed office uses. That comment constitutes an acknowledgment that the number and dimensions of parking spaces require a variance from the requirements of the Ordinance. How can the report opine that there are no negative impacts when it hasn’t considered the parking requirements for the 30,000 square foot catering facilities; nor the 75,000 square foot health club facilities; nor the 15,000 square foot ARCORP office space? Imagine the Board’s conclusion on page 23, "The limited plan does not cause any increase in traffic, so there will be no adverse air-quality impacts." But the banana building is an empty building. It’s going to be converted to a 75,000 square foot health club; 30,000 square foot catering hall and 15,000 square feet of office area.

Can it seriously be contended by the Board that the plan won’t cause any increase in traffic? That conclusion by the Board is palpable nonsense. It defies common sense. The Board in discussing environmental impacts completely disregarded the report of the town environmental commission and disregarded the standard of the ordinance that it "will not cause any substantial adverse environmental impact. In addition to its unsupportable finding in paragraph A on page 23 that there would be no increase in traffic, no adverse air-quality impacts, the only other finding by the Board dealt with soils which referred to the fact that there is soil contamination and that they must comply with the remediation plan. What about all of the other components of the environmental impact statement? What about the environmental concerns expressed by the environmental commission? Again, the conduct of the Board was marked by arbitrary, capricious and unreasonable conduct.

28. In section 2 of the Resolution the Board enumerates compliance requirements of N.J.S.A. 40:55D-45 but it fails to note as we have pointed out in a companion Point of this brief, that the imperatives of the 40:55D-45 are required to be in the Ordinance. The Ordinance doesn’t have the mandatory statutory language. The Board then in sections A through F correctly quotes the standards of the statute and says, by way of conclusion, as to each that the Board finds that the plan complies. That kind of captious, conclusory statement is an affront to the process. If they make a conclusion of compliance with each of the statutory standards, they must make specific findings of fact which elucidate the basis for the conclusion made by the Board. None of the that is provided.

29. We now go to section 3 of the Resolution which starts on page 26 and is entitled "conditions". In A it tells us that the site plan approved by the Board of Adjustment is ratified. There is no provision in the Land Use Act which authorizes a Planning Board to either ratify, modify, approve, reject or reverse an approval of the Board of Adjustment. If there is some authority in the law for ratification by a Planning Board of action taken by a Board of Adjustment perhaps one of our adversaries can cite the law. After many years of practice in this field I have not come upon any statute or case which conveys upon the Planning Board any jurisdiction over site plan approvals by the Board of Adjustment.

Paragraph B again ratifies the prior site plan approval of the Board of Adjustment. Paragraph B deals with the prior approval of the restaurant. Paragraph A ratifies the approval on the existing marina. In a perplexing statement in B, the Resolution says the parking configuration for the restaurant is to be shown as part of the townhouse site plan. Paragraph C then gives the applicant the right to apply for site plan approval for the townhouses without meeting any further requirements of the preliminary planned development approval. Where is the authority for the Board to give carte blanche exemptions from requirements of the planned development approval? The Board in paragraph D gives the banana building and its associated parking conceptual approval, even though it then says that it doesn’t endorse the parking layout as shown on the plans. It says that the parking layout of the banana building must minimize land coverage but the planned unit development Ordinance requires the parking layout as an integral component of approval of a planned development. It then proceeds to say conditions must be met for a site plan approval for the banana building and scant attention was given to the implications of giving approval to the concept of the health club, the catering facilities without a consideration as to whether they were permitted uses, whether there was adequate off-street parking, and what the environmental impact of the banana building would be, all of which are requirements of the planned unit development ordinance. Again, the Resolution in subparagraph iv. on page 27 talks about special traffic assessment, environmental review, fiscal impact and marketability review must be submitted with any site plan. But the Ordinance of the municipality requires that they be submitted and passed upon at the time of the planned unit development and that provision of the Ordinance was not complied with and notwithstanding the non-compliance, the Board gave approval to the planned unit development application. The Resolution continues on the next page in subparagraph by making similar comments about the boat maintenance facility. One would think that that the Board would at least have addressed the question of whether a boat maintenance facility is permitted under the zoning Ordinance and with respect to the boat maintenance facility the Board should have addressed the requirements of the planned unit development Ordinance as to what must be submitted and what proofs must be provided as part of the application for planned unit development. The Board then on the bottom of page 28 in paragraph iv. raises the specter that the park can’t be constructed because the property can’t be remediated to DEP standards for park usage, alternative park locations and that amenities satisfactory to the Planning Board, the applicant and the Township Council shall be required. But that’s one of the reasons why an environmental impact statement is required as part of the planned unit development application. An integral part is a proposed 6.1 acre park. Where is the environmental impact statement to demonstrate that the park can be constructed conformable to remediation standards of the DEP for park usage? The Board kept on in its insistence in disregarding what the Ordinance said and made up a body of rules to accommodate its own predisposition. The open space requirement is a condition of planned development approval. The Board acknowledges that the proposed park may not be environmentally possible. They should not have approved the plan. The Board continues on page 29 by again exercising a fantasized jurisdictional power to ratify the prior approval of the Board of Adjustment. But then it says, "except as it may be specifically modified by the plans." Here, the Planning Board thinks it has the right to modify an approval of the existing ferry building given by the Board of Adjustment. There is no authority or jurisdiction in the Board to modify a site plan approved on the property by the Board of Adjustment. (Parenthetically it was not only site plan approval given by the Board of Adjustment but also use variance approval. It is incredible that the Planning Board should think it has jurisdiction over use variances) The only Board which is legally empowered to modify the site plan approved by the Board of Adjustment is the Board of Adjustment. In paragraph (b)I, The Board again attempts to tinker with the prior action of the Board by saying that the application for site plan approval of the relocated ferry building is subject to the right of the Board to require changes in the parking configuration heretofore approved by the Board of Adjustment. Again we point out that the prior Board of Adjustment approval was a use variance. Imagine on page 29 in paragraph c that they have approved the concept of 300 units of assisted living as a component of the planned development subject to precise location and configuration determinations that will occur in the future. How can the plan be approved if the location and configuration are not shown on the plan? Again, the Board eviscerates its own Ordinance. In paragraph d on page 30 the Board approved the concept of 120 units of lowrise housing near the water’s edge. It does not, however, endorse the location of the housing immediately adjacent to the waterfront walkway or the configuration shown on the plan at this time. But the Ordinance requires the Board to make determinations as to compliance with the Ordinance. The Board has not made a determination that the location shown for 120 units conformed to set-back and other bulk requirements of the Ordinance, and if they do not, the Board can’t give any approval, conceptual or otherwise. And then in paragraph e dealing with parking for the existing ferry, marina, restaurant the Board ratifies the approval heretofore given by the Board of Adjustment, "except as they are modified on the plans." Thus, we have the phenomena of this Board attempting to give the applicant a modification of the site plan and the use variance that had been approved by the Board of Adjustment. Again, it was a usurpation of jurisdiction not sanctioned by the law. If the parking plan for the existing ferry, marina and restaurant have been approved by the Board of Adjustment as use variances, the Planning Board cannot modify that approval. If the applicant wants a modification, jurisdiction reposes exclusively in the Board of Adjustment.

The Resolution continues on page 31 and talks about equivalent number of parking spaces must be removed or devoted to parking dedicated for non-ferry purposes. We guess that means that the Board thinks that it can modify the site plan and use variance approval given by the Board of Adjustment and remove ferry parking which was heretofore approved by the Board of Adjustment. Maybe the attorneys for the Defendants can cite some statute or case law which gives the Planning Board that right to change, nullify or modify a site plan approval and use variance approval of the Board of Adjustment. Then the Board attempts to convey to the developer the 7 year repose protection for its problematic, incomplete non-complying planned development application. The Board in paragraph 8 on page 33, in violation of the provisions of section 23-10a of the Ordinance concerning affordable housing, defers compliance to each site plan approval.

30. The Board in the final paragraph of its Resolution on page 34 astonishingly tells us that "the approval of this Resolution is intended to acknowledge that all uses heretofore granted by variance of the Board of Adjustment are from and after the date of this Resolution, permitted uses subject to the conditions of this Resolution and the future jurisdiction of the Planning Board. This Resolution is not intended to modify any condition of the Board of Adjustment Resolution that has not as yet been complied with by Roseland or its predecessors." This paragraph is pregnant with jurisdictional implications. The Board has otherwise acknowledge in its Resolution that the Board of Adjustment has heretofore granted site plan approval and use variance approval. It also acknowledges in this paragraph that the Board of Adjustment has heretofore granted variance approval for the property. It then says that from and after the date of the Resolution of the Planning Board, those uses are permitted uses subject to the conditions of "this Resolution and the future jurisdiction of the Planning Board."

Suddenly, the conditions of the use variance approval of the Board of Adjustment are not controlling and those uses are subject to the conditions of the Planning Board Resolution and the future jurisdiction of the Planning Board. This paragraph is incredible and astounding. It re-writes everything the Municipal Land Use Act says with great explicitness in defining the powers of a Planning Board. The powers of the Planning Board are set forth in N.J.S.A. 40:55D-25. Section 25 does not include the power to modify or usurp Board of Adjustment jurisdiction. The Planning Board has absolutely no jurisdiction over use variances. It can’t grant them. It can’t modify them. It has no right to even receive let along grant such an application.

End of Part 9 Legal Argument Point 5 Items 20-30