WOODCLIFF LAKE—Zoning Board members likely will vote July 20 on whether a legal principle, “the thing has been judged,” applies to 188 Broadway LLP’s proposal for a 53-unit apartment complex.
If members vote that the principle—in Latin res judicata—applies to the applicant’s proposal for 53 units and a 21⁄2-story second building that does not require a variance, it effectively rejects the applicant’s third attempt to erect multifamily housing at the 188 Broadway site.
Although the board rejected a somewhat similar 60-unit application in 2019, this proposal is reduced by seven units to 53, requires one less variance, and claims a hardship based on new economic realities caused by the pandemic—the reduced demand for office space.
Pascack Press spoke to applicant attorney Paul Kaufman and board attorney Salvatore Princiotto for this story; both declined to comment for the record due to ongoing public hearings.
Residents tuning into any of the recent Zoning Board hearings on the revised application for 53 apartment units at 188 Broadway have probably heard the phrase res judicata from Zoning Board attorney Salvatore Princiotto.
Often, Princiotto’s use of the term has followed a disagreement with 188 Broadway LLP attorney Paul Kaufman, also an applicant principal, but the board attorney has sprinkled the term throughout the hearings.
This is due to the likelihood that if the Zoning Board hears the 188 application and decides that the principle applies to the revised proposal it effectively finds the application is already decided—and rejected.
The question hangs over the application hearing, with the Zoning Board set to vote soon on whether res judicata applies here.
Princiotto refers to it in a Feb. 18 letter on the issue posted under the 188 Broadway proposal documents. He recommends the board decide the issue by evaluating and determining whether five necessary elements exist for res judicata prevail in 188 Broadway LLP’s current proposal:
- If the second application is substantially similar to the first;
- If the same parties or their privies are involved;
- If there is no substantial change in the application itself or conditions surrounding the property;
- There must have been an adjudication on the merits in the first case; and
- Both applications must involve the same cause of action.
The Zoning Board of Adjustment voted unanimously in July 2019 to reject the applicant’s then proposal for a 60-unit, two building apartment complex.
If res judicata applies, the board can dismiss the application as “useless,” according to an online law website.
Kaufman, and applicant experts, do not hold that the principle applies. In fact, applicant planner Joseph Burgis cited six “special reasons” he believed the revised application was different and showed how the proposal is supported by both the Municipal Land Use Law and State Development and Redevelopment Plan.
They stress that the current application is different because the applicant proposes 53 units, not 60 as before, and one fewer variance is needed now as the second building proposed on site was reduced from 3 stories to 2 1⁄2.
However, as before, the proposed 53-unit complex still requires a use variance due to a proposed multifamily development in a Special Office (SO) Zone. Part of the site is zoned R-15 for residential, single family but no development is proposed there.
Much discussion and disagreement has occurred over whether there is a market for an office building at 188 Broadway: applicant experts say the market is gone for such low-quality space as offered by 188 Broadway with no nearby amenities while zoners question that assertion and related testimony.
Applicant experts said the 188 Broadway space is not near major highways nor does it offer nearby amenities such as shopping, dining or entertainment.
Zoning Board members have not provided any signs for or against the application, though most have noted that the case before them appears similar to the one they rejected in 2019, save for what they view as a few minor changes.
Although the units are reduced from 60 to 53, the proposal still requires a land use variance, which zoners did not buy into two years ago and seemed to question from the outset of hearings on the revised application.
Much early testimony in the revised application from Kaufman centered around the former owner being the only tenant when 188 Broadway LLP purchased the property. Kaufman said no other tenants occupied the structure then and cited the reduced need for office space as a result of the pandemic and more employees working remotely.
Whether res judicata applies to the case will be determined following a final hearing and public comment, and after instructions from Princiotto to the Zoning Board, followed by a Zoning Board vote.
Meanwhile, 188 Broadway LLP continues its appeal of the original July 2019 Zoning Board decision to reject its original 60-unit proposal, which remains before Superior Court Judge Gregg Padovano.