EMERSON—Whether Emerson Station’s redeveloper needs to get local zoning approval to construct seven offsite affordable units at 129 Kinderkamack Road — now zoned for commercial and mixed-use multifamily — is a question that could wind up in court, be answered by the borough, or be answered by the implementation monitor appointed last year to expedite the downtown development.
The next Borough Council meeting is March 15.
In early December, the redeveloper’s attorney appeared before council, after its previous application to the Land Use Board for a variance from the commercial restrictions on ground-floor uses in the CBD-15 zone.
The board said it could not grant a variance; the council, it said, would have to eliminate the commercial space requirement and allow multi-family residences on the first floor.
The council’s March deliberation on the matter was tabled when Borough Attorney John McCann said he had yet to read a letter sent to him by the redeveloper’s attorney addressing council questions from December 2021.
The redeveloper’s attorney also contends the zoning dispute, or zoning variance matter, can be resolved by the implementation monitor, a retired judge, and that the borough agreed to that. McCann disagrees.
The monitor was appointed by Superior Court last year to expedite construction activities and the 29 affordable units agreed to under the borough affordable settlement.
The redeveloper contends that because 29 affordable units are mandated by the borough’s affordable housing settlement, and retired Judge Carroll was put in charge of expediting their construction, he should have jurisdiction over whether the seven units can be built at 129 Kinderkamack Road.
David Phillips, of Sills Cummis & Gross, an attorney representing Emerson Redevelopers Urban Renewal LLC, appeared Dec. 7, 2021 before the council to request an amendment to local zoning so the redeveloper could construct the seven off-site affordable housing units at 129 Kinderkamack Road.
The site was purchased by the redeveloper exclusively for seven affordable units, said Philips.
Following Phillips’ Dec. 7 request to council, McCann submitted an email that posed nine council questions to Phillips, among them:
- When did the redeveloper close on 129 Kinderkamack Road?
- Whether the seven offsite affordables might be put onsite at Emerson Station;
- When the redeveloper knew that Emerson understood its intention to use 129 Kinderkamack for seven offsite units;
- Whether the redeveloper realizes that 129 Kinderkamack was not zoned for multifamily housing; and
- How many alternate sites were considered for the seven offsite units.
Philips presented five reasons Dec. 7 on why the implementation monitor should permit the affordable units at 129 Kinderkamack Road. Some included:
- The redeveloper purchased the land about two years ago with the intention (allegedly known by the borough) that the units were to be built there;
- The requirement for commercial space on the ground floor would drive up project costs and threaten its viability; and
- Public policy favors 100% affordable buildings, which this would be if it did not need to have commercial space on the ground floor.
McCann said the borough did not know the redeveloper planned to build affordable units at 129 Kinderkamack Road.
Phillips said Dec. 7 that the monitor was deciding whether to allow 100% affordable housing at 129 Kinderkamack Road. However, it was not clear if the monitor had the authority to permit a zoning change on the property.
According to the Dec. 7 meeting’s approved minutes, McCann accused Phillips of making “conclusionary statements without any support.”
“McCann asked Phillips to go over the first point made to the monitor as he did not hear it. Mr. Phillips said that the Borough had agreed in the settlement with Fair Share Housing that it would demonstrate a realistic opportunity for these seven units on or before July 1, 2020 and that had not been done,” the minutes say in part.
They add, “McCann asked if Phillips had a page where that was in the settlement agreement. Phillips said it had not been done. McCann said he was asking for the basis for what he was saying was accurate and asked him to cite the document. Phillips said no, he could not cite it.”
From there, according to the minutes, McCann said that if Phillips kept making conclusionary statements without any support, “that was something he was trying to flesh out.”
McCann charged that Phillips had not proven that the borough ever knew that the redeveloper had purchased 129 Kinderkamack for offsite affordable housing.
Also, Board Planner Caroline Reiter, of Statile & Associates, said she first heard about the 129 Kinderkamack Road property being used exclusively for affordable units on Dec. 7, a meeting she also attended.
She defined the CBD (Central Business District)-15 zone, where 129 Kinderkamack stands, as meant to have mixed use structures, such as retail/commercial on the ground floor and multi-family units above.
Reiter said that an affordable family unit is one that was not restricted to a certain subpopulation, such as senior citizens.
Reiter said CBD-15 permitted uses were retail stores, personal service businesses, restaurants, offices, child care and nursery facilities.
Moreover, CBD-15 zoning permitted multi-family residential dwellings above at-grade nonresidential sues and multi-family residential uses above parking in specific locations.
Multi-family residential uses are permitted at grade only at certain locations — this did not apply to the subject property, Reiter said.