Written below is the complete text of our complaint demanding that the Weehawken planning board's decision be invalidated and Mayor Turner & Richard Barsa be removed from the planning board.

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SEGRETO & SEGRETO, ESQS.

329 Belmont Avenue

Haledon, NJ 07508

(993) 956-8400

Attorneys for Plaintiffs

____________________________________________________________

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION : HUDSON COUNTY

DOCKET NO.

Civil Action

ROBERT KOTCH and LINDA )

KOTCH, MARICEL and ALEJANDRO

PRESILLA, NIKKI KORDA, THOMAS ) COMPLAINT (PW)

PENDERGAST, MARK WOODWARD,

CHRISTINE CORNELL and NATHANIEL)

MERRILL, resident property

owners of Weehawken, FRIENDS )

OF WEEHAWKEN WATERFRONT, a

non-profit corporation con- )

sisting of residents and

taxpayers of the Township of )

Weehawken,

)

Plaintiffs,

)

v.

)

TOWNSHIP OF WEEHAWKEN, THE

PLANNING BOARD OF THE TOWN- )

SHIP OF WEEHAWKEN, RICHARD

F. TURNER, RICHARD BARSA )

and ROSELAND/PORT IMPERIAL

SOUTH, LLC, the applicant, )

Defendants. )

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FIRST COUNT

The Plaintiffs by way of Complaint, say:

1. They are resident taxpayers of Weehawken and have standing.

2. The Defendant Richard F. Turner is the Mayor of the municipality and unlawfully participated as the Class I member of the Planning Board on land use matters which come before the Board. He so participated and voted on the application which is the subject of this suit.

3. The Defendant Richard Barsa unlawfully participated and participates as a Class II member of the Planning Board on land use matters. He participated and voted on the application which is the subject of this suit.

4. On November 5, the Planning Board approved three land use applications of the Defendant developer.

5. At that meeting only four lawful members were present and thus there was no quorum. The Board consisted of nine members.

6. At the meeting of January 5, 1999 when the memorializing resolution was adopted and the Defendants Turner and Barsa voted unlawfully, there were only four lawful members present which was not a quorum.

7. At the meeting of October 22, 1998 there were only three lawful members of the Board present and it was not a quorum.

8. At the meeting of September 24, 1998 there were only three lawful members of the Board present and it was not a quorum.

9. At the meeting of September 10, 1998 there were only three lawful members of the Board present and it was not a quorum.

10. The participation of Turner and Barsa and the action of conducting the meetings without a quorum and voting was unlawful and the approval of the

application was unlawful and should be set aside.

WHEREFORE, Plaintiffs demand judgment:

A. Invalidating the approval;

B. Ordering the removal of Defendants Turner and Barsa as members of the Board;

C. Restraining and enjoining them from exercising any of the powers of a Board member.

SECOND COUNT

11. The Plaintiffs repeat all of the allegations of the First Count.

12. On January 7, 1999 Notice of Publication by newspaper was given and the within suit is instituted within 45 days thereof.

13. On January 5, 1999 a resolution was adopted memorializing the approval granted by the Board on November 5, 1998 for preliminary and final site plan approval; preliminary planned development approvals and revised subdivision final plat approval.

14. At each of the meetings of the Board on the application the Board violated the provisions of the Open Public Meetings Act.

WHEREFORE, Plaintiffs demand judgment invalidating the approvals.

THIRD COUNT

15. The Plaintiffs repeat all of the allegations of the First and Second Counts.

16. The approvals were unlawful, inter alia, for the following reasons:

1. A member who had been absent from hearings did not file and sign the requisite statutory certification.

2. The Planning Board lacked jurisdiction inasmuch

as the property had been granted land use approvals by the Board of Adjustment which thereby had exclusive jurisdiction.

3. A variance was required from section 23-10.4b of the ordinance and was not noticed, applied for, nor granted.

4. The applicant failed to meet its burden of proof under the MLUA and the applicable ordinances and the Board in its Resolutions failed to make adequate findings of fact and conclusions based upon competent evidence in the record.

5. The findings of fact by the Board are not supported by the record.

6. Detailed complying Passive Open Space plans were not submitted.

7. There was no compliance with section 23-10.4(i)3,

1b, 3a, and 22-10.2 B of the ordinance.

8. In determining FAR compliance the Board improperly included in the calculation filled area and land under water.

9. A height variance was required and was not noticed, applied for nor granted.

10. The applicant did not comply with section 23-20.4(g), (d) of the ordinance.

11. The plans do not comply with the requirements of section 23-10.45, and 23-9.2-9.15 of the ordinance.

12. The Board improperly approved the plan for a planned development without compliance with the standards of the ordinance as to the entire development.

13. The applicant violated the view corridor requirements of the ordinance and a variance was not noticed, applied for nor granted.

14. The applicant failed to meet is burden of proof under the ordinance as to the assisted living units and the 120 lowrise units, the building renovation and boat maintenance facility.

15. The applicant failed to meet its section 23-10.4, 4b burden of proof as to Pedestrian Access.

16. The waterfront walkway easement area does not comply with the requirements of the zoning ordinance and a variance was not noticed, applied for, nor granted.

17. The marketability criteria was not met and the Board improperly concluded that it had been made based upon its alleged familiarity with market conditions rather than evidence in the record.

18. The Environmental Impact criteria was not met conformable to section 23-10.4a7.

19. The Board improperly concluded that the requirements of section 23-10.4a8 had been met.

20. The Board improperly granted approval to the Banana Building use, health club, and catering facility even though the accessorial parking was not depicted on the plan.

21. The board acted ulta vires by providing that all uses approved 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."

22. The approval of the revised subdivision was not based upon finding of facts and conclusions as to the standards of the subdivision ordinance.

23. The final site plan approval was neither noticed or applied for.

24. The requirements of the site plan ordinance were not complied with.

25. The 60 foot distance between buildings was not complied with and a variance was not noticed, applied for, nor approved.

26. The Board granted a departure from section 23-10B of the zoning ordinance and it was not noticed, applied for nor approved pursuant to the requirements of the MLUA.
27. No testimony was offered as to the relationship of the application to the Master Plan.

28. Residential uses are conditionally permitted uses in a planned unit district. No application for a conditional permit was noticed, applied for nor granted nor were the conditions complied with.

29. The applicant failed to comply with the planned development criteria.

30. The notice fails to indicate the nature of waivers and exceptions being sought.

31. A conforming municipal cost/revenue analysis report was not submitted.

32. The applicant failed to submit the documentation required as to the form of organization for common open space management.

33. A landscape complying plan was not provided.

34. The engineering reports of the Board were not complied with.

35. The location of filled land with test boring data was not submitted.

36. No evidence was submitted as to compliance with the Waterfront Intensive Planning Area Development Guide.

37. The plans were modified on 10/29/98 and 11/06/98 without renotification and the revisions, inter alia, moved the location of the buildings.

38. The rationale for not complying with the 30’ walkway requirements of the zoning ordinance was marketability of the dwelling units. The departure by 6 feet from the requirements of the ordinance was neither applied for nor noticed nor was a variance granted and the applicant failed to meet the affirmative and negative requirements of the MLUA.
39. No testimony was given as to sea-level elevation.

40. The view corridors are non-complying and are 40 feet rather than the 60 feet required.

41. The access points to the walkway are inadequate.

42. The park area proposes to place fill over the tunnel and no approval has been received from the Port Authority.

43. The proofs as to the Old Glory view corridor were not presented.

44. The traffic to be generated from the health club is 161 vehicles during the peak hour and no parking assessment was done by the applicant.

45. The subject property is landfilled and the Board in determining height compliance failed to substruct the landfill over burden.

46. The Board Planner testified that the FAR is 77,600 square feet and it exceeds the FAR requirement.

47. The applicant did not disclose the number of parking spaces that will ultimately be developed.

48. The applicant did not provide any landscaping plans for the proposed planned development.

49. The applicant did not provide the Board with a staging or phasing plan that shows both the proposed development and the removal and/or relocation of existing uses nor of which existing uses will remain active following the compliance of the development.

50. The applicant failed to meet the specific requirements of section 33-10.1 of the ordinance as to consistency with the requirements as to view planes, view corridors, total housing units, parking standards, total units of the space requirements, total FAR and other requirements of the ordinance.

51. An adequate analysis of access points was not made by the applicant.

52. The uses within some of the easement areas overlap each other.

53. The Plans are incomplete as to drainage inverts and drainage areas.

54. The discharge of the drainage system was not adequately shown.

55. The final site plan for the Brownstones contain inconsistencies with the Planned Development Plan.

56. A traffic report was not submitted as to the Planned Development.

57. The subdivision plan departs from the 1997 subdivision plan and the Planned Development Plan.

58. The traffic generation and parking impacts of the 300-unit care facilities were not adequately addressed.

59. Adequate traffic impact information was not submitted as to the proposed uses of the Banana Building.

60. As to the parkland and open space, inadequate information was submitted as to size and location, identification of pedestrian and vehicular access, the number of spaces, and the accessability of the spaces.

61. As to the walkway inadequate information was submitted as to the location and size of the right of way,

pedestrian access to the walkway, the bikeway separation, the availability of the pedestrian walkways and as to who the users will be.
62. Inadequate information was submitted as to bus and rail transit, including vehicles access and parking and the actual anticipation of usage of those tow modes of transportation.

63. As to the ferry terminal and its gate access, insufficient information was submitted as to the schedule of relocation, detail of the size and operation and its access at each phase and now it relates to each development phase.

64. Inadequate information was provided as to the interaction of the traffic operations as to each land use, the existing traffic on the Boulevard and the existing restaurant use.

65. Inadequate information was provided as to the relationship of project traffic to the proposed reconstruction of Baldwin Avenue.

66. Laura Staines was permitted to express expert opinions at the 9/24/98 meeting without having been qualified on the record.

67. Testimony was not offered as to the area of the waterfront walkway.

68. Jeffrey Lanza was permitted to express expert opinions without having been qualified on the record.

69. At the meeting of September 24, 1998 the Board continued the hearing until October 1, 1998. The hearing was not in fact continued on October 1, 1998 but instead

was continued on October 22, 1998 without a notice of publication or notice to property owners and others required to be noticed.

70. The ordinance requirement of pedestrian access was not met by the applicant.

71. No provision or consideration was made for reservation of parking spaces for the public which was intended to use the walkway.

72. No parking phase plan was submitted as to how the ferry is to function in each stage of development, the impact of light rail and the park issue.

73. No detailed open space plan was submitted.

74. Plans for a bikeway were not submitted.

75. No competent evidence was submitted as to the impact of the proposed catering facility.

76. The plans approved lacked specificity as to the range from 44 - 58 Brownstones and no supporting testimony was offered as to the impact of 44 as opposed to 58.

77. No walkway was shown in front of the tennis courts, the pool, the Banana Building, the park and the ferry building.

78. The plan does not show integration of pedestrian activity between the "several distinct neighborhoods" of the Planned development.

79. Compliant plans for the park and the marina were not submitted.

80. The location of the proposed light rail station was not depicted.

81. No mitigation measures were proposed as to and through the site via Port Imperial Boulevard and the impact of the two roadways were not adequately considered.

82. The Board improperly considered the testimony at the July meeting for which proper notice had not been given.

83. A pedestrian access plan to the proposed LRT station was not submitted.

84. The applicant explicated represented that there would be subsequent phases of the planned use development but decline to disclose those future development plans.

85. The applicant did not present any plans for the parkland development.

86. No testimony was offered as to traffic generation of the 35,000 square foot catering establishment.

87. A portion of the tract is located in 3 zones on the zoning map, i.e., B-2 zones, B-3 zones and I zone and the Planned Development Overlay does not apply to the B-2 and B-3 zones.

88. Zoning and planning opinions were received from witnesses who had not been qualified.

89. The entire planned development was required to be included with supporting testimony and findings of fact and conclusions by the Board and it was not done.

90. The applicant failed to comply with the requirements of section 22-77 of the land development ordinance and was not entitled to combined preliminary and final approval.

91. The applicant failed to comply with the requirements of section 22-7.5(a) of the Land Development Review Ordinance.

92. The applicant and the Board failed to comply with the requirements of section 22.7-6.

93. The applicant failed to meet its burden of proof and the Board failed to make adequate findings of fact and conclusions as to the standards of section 23-8 of the zoning ordinance.

94. The traffic study of the applicant did not include an impact study for the overall Port Imperial South Development and the interim report did not conform to generally accepted engineering standards.

95. No consent was given by Romulus Development Corp as to property owned by it, i.e., Block 36.05 Lot 1.01; Block 45.01 Lot 1.01 and 3.01.

96. Block 45.01 Lot 4.01 and Block 36.05 Lot 2.01 do not exist on the Township tax records.

97. Ten percent ownership disclosure was not made.

98. Set backs have not been shown for the residential planned development plans.

99. The details of the proposed waterfront walkway have not been provided.

100. Right-of-way access to Block 45.01 Lot 3.01 has not been provided.

101. No right of ways for interior roadways have been provided.

102. A study of the existing downstream sanitary sewer was not submitted.

103. Proposed facilities do not comply with the 50 foot setback requirements.

104. The retaining wall and waterfront walkway for Brownstones extend into Block 64.01 Lot 1.01.

105. The 46 foot wide Avenue uses all of the 30’ wide waterfront walkway easements at the proposed ferry terminal.

106. No evidence was submitted that the existing downstream sanitary sewer system to remain is adequate in capacity and condition to handle the proposed wastewater flows.

107. Revised plans were not filed with the Board within the time required by the MLUA.

108. No evidence was submitted as to traffic impacts with respect to ferry operations and overall circulation with Post Imperial Boulevard.

109. No evidence was submitted as to the adequacy of proposed and existing gravity sewers, force mains, pump station and treatment plan for the overall wastewater discharge.

110. Site access for single unit tracks and emergency vehicles is inadequate.

111. The northerly site drive creates safety problems due to sight distance limitation and vehicle queing on Avenue at Port Imperial.

112. Evidence that the wastewater from Brownstones to pump station number 2 will not become septic was not submitted.

113. Design data for storm drainage calculations were not submitted for the adjacent roadway drainage system.

17. As a result of the aforesaid, the approvals were arbitrary, unreasonable and unlawful and should be set aside.

WHEREFORE Plaintiffs demand judgment invalidating the approvals.

FOURTH COUNT

18. The Plaintiffs repeat all of the allegations of the prior Counts of the Complaint.

19. The provisions of section 23-10c (g) of the

zoning ordinance which attempts to grant the Planning Board

the right to permit other uses without standards for the exercise of discretion is invalid and it is further invalid in that it attempts to grant to the Planning Board the power to permit non-permitted uses.

20. The provisions of the zoning ordinance which purports to grant the Planning Board the power to depart from the 30 feet wide easement requirement is unlawful in that it attempts to circumvent the affirmative and negative criteria of the Land Use Act relative to variances from the zoning ordinance.

WHEREFORE, Plaintiffs seek judgment against the Township of Weehawken invalidating the said provisions of the ordinance.

SEGRETO & SEGRETO

By:__________________

James V. Segreto

Dated: February 18, 1999

 

CERTIFICATION

I hereby certify that the matter in controversy is not the subject of any other action pending in any Court and is likewise not the subject of any pending arbitration proceedings. I further certify that I have no knowledge of any contemplated court action in any Court or arbitration proceeding which is contemplated regarding the subject matter of this action and I am not award of any parties who shall be joined in this action.

_________________________

James V. Segreto

Dated: February 18, 1999

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