EMERSON—Emerson Station’s redeveloper’s attorney, seeking an accommodation for a 100% affordable, seven-unit building at 129 Kinderkamack Road, has yet to answer nine questions posed by the governing body.
Without those answers, says Borough Attorney John McCann, the borough can’t proceed on the request. Zoning prohibits such multifamily housing at that location.
The recent back-and-forth between the redeveloper, mayor and council over whether Emerson should amend zoning code and permit the building is the latest dust-up in a legal and public battle over the downtown redevelopment project. The council next meets April 5.
The current zoning at 129 Kinderkamack Road, which is a Central Business District (CBD-15) Zone, permits only commercial and mixed-use commercial or multifamily buildings, with commercial uses on the ground floor.
The applicant, Emerson Redevelopers Urban Renewal, asked the council in December 2021 to amend the site’s zoning to allow the development of seven off-site affordable units required as part of the Emerson Station’s affordable housing obligation.
McCann and planner Caroline Reiter, of Statile & Associates, said that was the first time they had heard of the applicant’s plans for affordable housing at 129 Kinderkamack Road.
Acting construction official Scott Wickersheim told Pascack Press on March 21 that underground inspections were underway on footings and plumbing “and things are moving along there.” He said the contractor has personnel on site to oversee ongoing construction.
All told, 29 affordable units are required of Emerson Station, including 22 on site and seven off site units.
Construction appears to be halted on the site, with few updates being provided by either council or the redeveloper. On March 21, two workers could be seen on top of a large dirt pile at the site using a mallet to pound on what appeared to be a pipe.
In October 2021, construction official Richard Silvia said that the general contractor was putting a trailer on site and that remediation was ongoing due to toxic contamination found at the former Ranch Cleaners at 190 Kinderkamack Road.
(See “Contamination halts Emerson Station project,” Pascack Press, Oct. 25, 2021.)
Silvia said then he would request two more inspectors for plumbing and electrical code inspections to be needed once construction activities kick off at the site.
No updates have been provided; we reached out to Silvia and attorneys for Accurate Builders and Developers of New Jersey but did not hear back by press time.
The redeveloper’s attorney said in December that the borough had previously agreed to the zoning change at 129 Kinderkamack but Borough Attorney John McCann said that was not true and asked the attorney to state where that was stated or agreed to.
The attorney, David Phillips of Sills Cummis & Gross, cited the redeveloper’s agreement but McCann noted that that agreement did not address zoning at any off-site parcels.
Following the March 15 council meeting, where McCann provided a closed session update to mayor and council on the issue, McCann said that the applicant’s attorney did not answer any of the nine questions posed by the council following the request for an amended zoning change at the December meeting.
Moreover, McCann said he did not believe that the “implementation monitor” appointed by the Superior Court — retired Judge Harry Carroll — had the legal authority to make a local zoning change as suggested by the redeveloper’s attorney.
Currently, McCann said, the implementation monitor has been reviewing the redeveloper’s request for a zoning change, the council’s response, and the questions the council submitted that are yet to be answered.
“They asked the council for a favor to change the zoning…but did you know what it [129 Kinderkamack] was zoned for when you bought it? What’s the basis for your request?” asked McCann.
Other questions:
- When did the redeveloper close on 129 Kinderkamack Road? Where else in town could the seven offsite affordable units be located?
- What date did the redeveloper know that Emerson knew it intended to use 129 Kinderkamack for affordables?
- Whether the redeveloper knew that 129 Kinderkamack was not zoned for multifamily housing;
- How many alternative sites were considered?
- When did the redeveloper decide not to use Habitat for Humanity in constructing the off-site units?
McCann said he “highly doubts” that Carroll has the legal authority to overrule local zoning but notes that his role as implementation monitor was to hold the borough and redeveloper to account for mutual agreements to construct affordable housing, agreed to as part of the Emerson Station redevelopment approved in late 2018 and Emerson’s affordable housing settlement plan.
McCann said that Carroll’s ultimate decision presents a conflict between affordable housing policy and local economic redevelopment, noting Emerson Station will be a four-story, 147-unit, mixed-use residential and retail development that is the centerpiece of what was designated as an area in need of redevelopment.
The 129 Kinderkamack Road property requires ground floor commercial space, but the redeveloper’s attorney said that requirement would drive up costs for affordable housing, which was not required under law.
Moreover, he said public policy favored 100% affordable housing complexes. He did not cite a source or reference for his statements.