EMERSON, N.J. —— The borough council on Dec. 5 approved overlay zoning for lots at the Chestnut and Bland industrial area and Emerson Plaza East, clearing the path that allows for up to 180 affordable housing units, but also existing uses.
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The measure passed, 4-1, on second reading. Councilmember Danielle DiPaola voted no.
“Did we alert any of the landowners on this overlay? Can we not take an extra step when we’re rezoning things to let property owners know what’s going on?” she said prior to the vote.
She explained people typically read about proposed zoning changes in the newspaper and that Emerson has been underreported.
The north overlay zone allows for a maximum gross density of 64 dwelling units per acre and will require at least 15 percent of the multi-family housing constructed for rental purposes, and 20 percent for sale purposes, to be set aside for affordable housing.
The south zone allows for a maximum gross density of 43 dwelling units per acre, with similar set-asides.
The vote came five days after Mayor Lou Lamatina announced a settlement agreement with intervenors including the Fair Share Housing Center.
The settlement caps the borough’s effort, launched July 8, 2015, to seek a declaration of compliance with the state’s landmark Mount Laurel doctrine and Fair Housing Act of 1985.
It establishes an obligation that the borough allow for the reasonable creation of 235 total units across the borough and is subject to a fairness hearing before state Superior Court Judge Gregg A. Padovano.
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Resident worries about his mom’s house, eminent domain
One resident, Michael Esqueu, an operations manager, spoke out during the meeting’s public comment session to complain about the overlays.
“Why are you bothering with people’s private houses? I was told numerous times through all these years the borough is never going to touch these houses on block 405 [on Kinderkamack Road between Lozier Avenue and Chestnut Street]. Never gonna touch them. Boom: They’re being touched.”
Town counsel Wendy Rubinstein told Esqueu that the overlay zones were consistent with the Master Plan.
Part of their purpose, she said, is in allowing uses now grandfathered in to be realized as conforming.
She also suggested the overlay zoning could improve property values.
“But I don’t know, I’m not an assessor,” she said.
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Suit challenges redevelopment action
The settlement accounts for 29 affordable rental units proposed in a contested redevelopment project at block 419, which is bound by the western side of Kinderkamack Road between Linwood Avenue, Lincoln Boulevard, and NJ Transit’s Pascack Valley Line.
The borough designated this patch a condemnation redevelopment area in 2016. Plans call for building a multi-use complex there through redeveloper JMF Properties.
In spring, the property owners of the former Ranchero Cantina and current Cinar Turkish Restaurant sued the borough and its land use board over the designation, which led to the properties being designated as blighted, saying the borough did so improperly and to help JMF Properties.
The objectors’ attorney, Richard DeAngelis, argues the proposed development of Block 419 “is not for affordable housing.”
Public documents show that JMF Properties “seeks to build 13,000 square feet of retail space and 147 residential units, of which 22 will be set aside,” he said.
DeAngelis noted to Pascack Press that JMF’s proposal depends on long-term tax breaks that the borough has approved under the Local Redevelopment and Housing Law.
He questioned whether the project will move forward absent a long-term tax abatement.
“We suspect the answer is no, which is why the borough does not want the property owners’ challenge to proceed. If our clients prevail, the developer’s tax breaks would be eliminated,” DeAngelis said.
After reviewing the proposed settlement with FSHC, DeAngelis said he was “not surprised” that the document includes affordable housing credits in the contested Block 419 project area but is silent on the litigation.
“The borough has done everything it can to avoid a hearing on the merits of our challenge of the designation because it knows it may not be sustained under the redevelopment law. These are not blighted properties,” he said.
DeAngelis said his clients would take the case to the Supreme Court if need be.
Following the overlay district vote, Pascack Press asked Lamatina to respond to these views as they relate to Block 419’s role in the affordable housing settlement.
“I’m concerned, but what are you going to do about it? There’s always uncertainty when you do anything,” Lamatina said.
He added that the property owners “had an opportunity to fight this where it should have been fought—at the Planning Board.”
The question is, he said, “Did we [the governing body] vote on something that we shouldn’t have? Did we make an arbitrary and capricious decision?”
He said “We have autonomy to do what we feel is appropriate as long as we don’t act arbitrary and capricious, which we didn’t.”
On Jan. 5, 2018, DeAngelis has a hearing with a judge in his clients’ quest to discover what borough, planner, and developer communications not otherwise available to the public might exist to help prove their case.
The borough is presumed to be working in the public interest, and the burden is on the objectors to prove otherwise if they can.
Should the settlement pass court muster, the borough will have up to 120 days to adopt its Housing Element and Fair Share Plan and spending plan.