TOWNSHIP OF WASHINGTON—At a meeting devoid of public comment, the Planning Board voted, 7-1, on Dec. 1 to approve Franklin Court Management LLC’s 44-unit multifamily inclusionary rental complex and two single-family homes off of Van Emburgh Avenue, while denying any variances for the two single-family homes.
The project is a first in the township.
Member Said Toro opposed the motion to approve a fully conforming application for 44 units and two single-family homes on Fillmore Drive.
Approving were Bill Carroll, Leonard Sabino, George Toole, Vincent Vinagre, Vladimir Wojno-Oranski, Councilman Thomas Sears, and Chair Brian Murphy.
Board attorney Louis Lamatina, immediate past mayor of Emerson, said he would provide an approval resolution to applicant attorney Donna Jennings within weeks to review, prior to a board vote memorializing the decision.
The complex includes seven affordable units and 37 market-rate rental apartments, and was part of the township’s affordable housing settlement.
The board’s approval was the second major multifamily development greenlit in 2021, following its Sept. 22 approval of the Viviano family’s “American Dream” project, a 66-unit townhome and single-family development at 463 Van Emburgh Ave., after nearly two decades of disputes and delays.
“The applicant is pleased that the Planning Board approved the fully conforming site plan to construct the 44-unit inclusionary project but is disappointed that it denied the lot frontage variances requested with the subdivision application for the two single family homes,” applicant attorney Donna Jennings, Wilentz, Goldman & Spitzer, Woodbridge, told Pascack Press on Dec. 2.
Jennings noted the applicant, Franklin Court Management LLC, had not yet decided whether it would appeal the board’s variance denials on both single-family homes. She said construction work was likely to begin on the rental apartments in spring 2022.
The approximately hour-long session Dec, 1 was unusual in what it had and did not have: The hearing mostly dealt with whether to okay variances for the developer’s two single-family homes.
Moreover, not a single member of the public raised an online hand when given an opportunity to comment on the first-ever 44-unit inclusionary multifamily complex in the township.
Within minutes of starting the hearing, the board opened for public comment and when no one raised an online hand, it closed to public comment. That was the only public comment period offered.
Near mid-meeting after the Planning Board secretary asked whether to open for public comment on single-family variance options, Murphy said “The public session was closed at the last meeting” and noted the Dec. 1 meeting was for board deliberations
Lamatina said he provided his legal opinions on Jennings’ 27-page memo to board members, but declined to state them publicly, citing attorney-client privilege.
Jennings was asked by Murphy to summarize the case issues and law in writing for board members at a prior hearing.
Most of the final hearing focused on whether planners would grant applicant variances to reduce required frontage or setbacks on the two single-family, market-rate homes included as part of the settlement agreement.
Hardly any discussion centered on the 44-unit rental complex, a focus of every previous hearing by planners and the public, most likely due to legal opinions from Lamatina on the board’s limited role given an approved affordable housing agreement and ordinance in place.
Members tied, 4-4, in the first two votes on plans to grant setback or frontage variances and following advice from Lamatina, members revisited and passed, 7-1, a third option that leaves the street turning bulb intact and grants no variances for reduced front-yard setback, or frontage.
The variances requested had sought to reduce setback from 50 feet to 25 feet, mostly to permit larger backyards for both homes.
Township Planner Stan Slachetka of T&M Associates said from “a planning perspective” that the applicant’s initial proposal for a reduced 25-foot setback variance was the best option.
However, a subsequent board vote rejected that option.
After Lamatina advised the board to reconsider its options, Sabino said it was “pretty clear what we can and cannot do based on the settlement with the town agreed upon several years ago” and enacted in Ordinance 18-12, passed by council in October 2018.
At one point, Murphy noted, “Just, as a caveat, you can’t rely upon what the residents want or don’t want. It’s certainly something that they can [protect]; it certainly gives you an idea of the character of the neighborhood,” he said, when discussing the homes’ setback variances.
Murphy said he did not remember any resident opposing a 25-foot setback buffer. He said many residents opposed the entire development, “and again that’s just not something this board is empowered to do.”
He said Lamatina did “set forth what’s going to happen if we don’t resolve this logjam” regarding variances for two single-family homes.
Parts of the hearing referred to court decisions and state law defining Mount Laurel and a Planning Board’s role, mostly from applicant attorney Jennings, plus testimony on the variance options for the two homes from Slachetka.
During several previous hearings, a half-dozen or so nearby residents of Fillmore Drive and Van Emburgh Avenue repeatedly criticized the township’s first-ever multifamily rental complex, a complex agreed to by the Township Council as part of its affordable housing settlement.
Prior public comment periods often lasted 15 minutes or more, with multiple residents offering two or three comments following testimony of each applicant expert.
They cited potential problems with traffic congestion, lack of privacy/screening, fire safety, emergency vehicles turning radiuses, fire vehicle access to parts of the complex, pedestrian safety, and lack of parking, with one neighbor listing nearly 60 issues of personal concern.
Recently, the police chief and volunteer ambulance corps captain raised concerns. Police Chief Richard Skinner worried about a lack of onsite parking, lack of emergency generator, and left-turn exit sight concerns; ambulance officials worried about ensuring ample elevator room to accommodate a large stretcher.
Applicant experts had noted parking meets state residential site improvement standards, with 90 spaces provided and only 89 required; and prior applicant testimony said elevators will accommodate the 7-foot long and 3-foot wide stretchers.
The development was detailed in a concept plan approved by Township Council in 2019 as part of its affordable housing amended settlement, and Planning Board members were restricted under state laws with what they could do or change, said some members.
The Mount Laurel laws and prior agreements did not permit them to significantly change or alter the agreed-upon 44-unit inclusionary development, which includes seven on-site affordable rental units and 37 market-rate units.
In addition to siting seven onsite affordable units, the applicant must pay $250,000 to the affordable housing trust fund for construction of two off-site units; be allowed to construct two market rate single-family homes as depicted on a conceptual plan in the settlement; and had agreed to abide by Ordinance 18-12, the ordinance enacting the development’s conceptual plan contained in the settlement agreement.
Ordinance 18-12 was cited in Jennings’ 27-page Nov. 19 memo, included as “Franklin Court Mgt. Letter to Board Chair” under online documents.
Prior to the Dec. 1 hearing, Jennings prepared a 27-page memo detailing what was previously approved by Township Council as part of its affordable housing settlement agreement, initially approved in 2017 and then reapproved in 2019 following an updated wetlands delineation and a concept plan for the 44-unit, two-home development.
The 2019 agreement contained a development concept plan prepared by CPL Partnership, LLC. Jennings’ memo spelled out case issues and applicable legal standards and statutes relevant to their application.
Included in Jennings’ letter attachments was the “amended and restated settlement agreement” that was signed Sept. 6, 2019 by Mayor Peter Calamari and Uri Cohen, managing member of Franklin Court LLC.
Calamari, one of nine Planning Board members, recused himself from participating due to his role in the affordable housing settlement.
In her letter to board members on relevant legal principles and the settlement agreement, Jennings specifically details the board’s limited role in changing aspects of the development.
“Generally speaking, the Township entered into an agreement to protect its interests, insulate itself from builder’s remedy lawsuits, and obtain a judgment from the courts that it was in compliance with its affordable housing obligations. That Settlement Agreement is binding upon the Township, required the Township to adopt the Ordinance (18-12), and required the applicant to submit an application substantially similar to the concept plan attached to the Settlement Agreement,” Jennings concluded.
“In the event the board were to deny the application, the Township risks losing immunity to builder’s remedy suits,” wrote Jennings.
Such suits, allowed under Mount Laurel law, often lead to drawn-out legal proceedings, high attorneys’ fees, and court-ordered settlements for higher-density, multifamily housing including affordable units. High-density developments approved in Englewood Cliffs and Park Ridge are two recent examples.
At one point Dec. 1, Jennings told members that if they denied taking action on variances for the two homes, her client might go to Superior Court to press demands for its original proposal: a 60-unit rental apartment complex that was larger and taller than the proposed 44-unit complex.
Jennings’s letter advises, “The Board’s review of the site plan application is generally limited to determining whether the plan conforms to the Ordinance (18-12), and the Board may not request the applicant go above and beyond what is required by the Ordinance. The board may also not deny the site plan application based upon off-site conditions such as traffic.”