OLD TAPPAN, N.J.—Following efforts by an attorney representing Bi-State Plaza businesses to delay an ordinance to rezone the former 19-acre Pearson property, the Borough Council voted 4-0 June 17 to adopt the measure—paving the way for a 225-unit development, including 99 townhomes and 126 rental units, including 39 affordable units, on the site.
Approximately 50 people attended the June 17 meeting, which featured arguments opposing the newly adopted ordinance from an attorney and planner representing businesses at adjoining Bi-State Plaza.
The June 17 public hearing was the first time an attorney representing Bi-State Plaza interests had appeared to oppose the rezoning effort.
Attorney Robert Inglima, of Ho-Ho-Kus, said his clients at the borough’s only central shopping center would be “injured” by approving a new zone that allows mixed-use development, which would permit residential units over ground-level retail stores.
Ordinance deadline
Borough attorney Allen Bell said the council faced a June 24 compliance hearing in Superior Court on its affordable settlement and possible loss of immunity on June 30 if the council postponed action on the rezoning ordinance.
If the borough lost court immunity, it would open it up to potential “builder’s remedy” lawsuits that might force higher-density multi-family housing on it to satisfy affordable housing obligations.
Voting in favor were Councilmen Victor Cioce, Jin Yhu, Thomas Gallagher and Guy Carnazza. Councilmen Ronald Binaghi, Jr. and Matthew Nalbandian recused themselves from voting due to conflicts of interest.
Bell said a majority of the council would have to vote in favor of the ordinance, meaning all four remaining needed to vote in favor.
Following the vote, it was not clear when 200 OTR LLC—the property’s owner—might propose a preliminary and final site plan to the Planning Board to initiate hearings on developing the former Pearson site.
A spokesman for 200 OTR LLC declined to comment when contacted by Northern Valley Press.
The ordinance was introduced April 15, and was planned for a public hearing May 20. However, the hearing was delayed so new Councilman Jin Yhu could review it.
The vote followed nearly two hours of discussion dominated by an attorney representing businesses at Bi-State Plaza who charged the ordinance was inconsistent with the borough’s Master Plan, Master Plan Re-Examination, and zoning ordinances, because it allowed mixed-use development for the first time ever in Old Tappan.
Inglima also charged the ordinance permitted mixed-use development of retail and residential at the site, with 21,000 square feet of commercial ground floor space.
He said no other zone permits such mixed-use development locally, which harms clients at Bi-State Plaza, who are not permitted to have a mixed-use development in their business zone.
He charged the ordinance also allowed intrusions in “buffer areas” between properties not allowed on the Bi-State Plaza property, including incursions into a buffer area by future units’ balconies and decks, and parking.
Use not mentioned
Inglima said Old Tappan’s 2017 affordable housing settlement never included mention of a commercial use for the former Pearson property, which was sold on Oct. 15, 2018 for $11,495,435 to 200 OTR LLC, of Park Ridge.
The borough’s settlement was approved in November 2017 and found satisfactory at a fairness hearing in March 2018 by a Superior Court judge.
Responding to charges that the ordinance was inconsistent with its Master Plan and mixed-use development was not mentioned in the settlement plan, Bell told Inglima the council could approve the ordinance despite it being inconsistent with a local Master Plan as long as it was consistent with its Housing Element and Fair Share Plan.
Inglima also said he disagreed with a prior conclusion of the Planning Board that the PRD-2 rezoning ordinance was consistent with the Master Plan.
He said he was unsure about Bell’s opinion that the council could approve an ordinance inconsistent with its Master Plan.
Prior to its final 2017 affordable housing settlement, the Pearson property was for sale and council members were able to negotiate with Fair Share Housing Center—a court-appointed advocate for affordable housing—to limit an affordable overlay zone to 12 units per acre, with a set-aside for affordable units in a rental or market-rate “inclusionary development.”
The vote to approve a 22-page ordinance to rezone the former 19.09-acre Pearson property creates a new PRD-2 zone, Planned Residential Development-Affordable Housing District, on Lot 7, Block 1606, covering the former Pearson property.
The site and two former Pearson buildings were vacant since 2014 when the publishing company moved to Hoboken.
The ordinance states the PRD-2 zone was created “to encourage the production of low- and moderate income housing…by permitting inclusionary townhouse and multi-family development subject to the PRD-2 regulations enumerated herein.”
99 townhomes; 126 rental units
Borough Administrator Anna Haverilla told Northern Valley Press the 225 new units proposed for the site would include 99 townhomes and 126 rental units, of which 20 townhomes and 19 rental units will be affordable.
Inglima called planner Peter Steck, of Maplewood, who testified about alleged “inconsistencies” and flaws in the PRD-2 zoning ordinance.
Steck questioned the legality of allowing mixed-use development, allowing parking in “buffer areas” between two properties, multifamily buildings 40 feet in height, and how the ordinance “works against” any cooperative planning between tenants of Bi-State Plaza and 200 OTR LLC.
He suggested an overlay zone should be adopted for Bi-State Plaza permitting residential and commercial as a possible option since 200 OTR LLC will be allowed to mix residential and commercial properties under the new zoning.
‘A city within the borough’
“What this developer is asking for is, ‘I want to have all the rules changed for my benefit,’” said Inglima. “Frankly I think it’s wrong to create a city within the borough just on this one 19-acre tract.”
“And frankly—I’m not underselling this one— [you] subject yourself to litigation that will arise from adopting this ordinance,” charged Inglima, suggesting the ordinance be tabled and revised or face possible legal action.
Peter Wolfson, attorney for 200 OTR LLC, charged that Inglima’s efforts to delay the rezoning measure were “late to the game” and “it seeks to upset all of this,” referring to the affordable housing settlement.
“They employ scare tactics, threats of litigation, misstatements and misinformation to seek to advance a commercial competitior’s interests,” said Wolfson.
He said municipalities statewide are crafting ordinances to allow affordable housing.
Wolfson said Fair Share Housing Center had seen the PRD-2 Affordable Housing District ordinance and made revisions to it, contrary to a previous Inglima claim.
“The law is clear that affordable developers are entitled to density and other benefits, a quid pro quo for which is the absorption of the cost of creating the uneconomic affordable units,” said Wolfson.
He suggested if Bi-State Plaza wants mixed-use zoning that they apply for a rezoning of their property.
Several residents spoke and wondered about impacts of multifamily housing coming to Old Tappan and surrounding towns, and impacts on the Lakeview neighborhood, a single-family residential development behind the former Pearson property.
‘Builder’s remedy’ fears
Councilman Yhu said the mayor and council “have guns pointed at our heads” by the Superior Court and Fair Share Housing Center.
“Should we not fulfill our obligations…the developer will proceed with a ‘builder’s remedy’ lawsuit against us,” said Yhu. He called the threat of such a lawsuit “the greatest motivator in our decision tonight.”
After the vote approving rezoning, Councilman Gallagher noted some residents “were blindsided” by the current affordable housing obligations though negotiations have been ongoing for years.
He read a statement he made following adoption of the borough’s 2017 affordable settlement. He noted Fair Share’s initial demands were “unrealistic” but said affordable housing was necessary to help keep seniors in town, provide housing for college graduates, young professionals and families, and volunteer firefighters and emergency personnel.
Efforts to determine how many Bi-State Plaza businesses Inglima represented and possible legal action were not returned by press time.