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Health & Fitness

Is Billion Dollar Hekemian / Developer admitting Defeat by Filing this Lawsuit?

It appears that Hekemian (S. Hekemian Group) has no confidence in his attorneys and the way the Zoning Board hearings are going, because this developer (as NMRA) has filed a lawsuit against New Milford’s Mayor and Council and the Planning Board (for “failure to rezone” and “COAH noncompliance”).

FIRST of all, they did not put on a sound case, so I can see why they’re switching strategies.  Smoke and mirrors only work on the tired and the lazy, both of which the objectors to this development were not.

  • Kinsey, their self-proclaimed COAH expert -- who admitted that this was his first inherently beneficial case in his professional career -- did not clearly and concisely articulate his points.  His testimony was so convoluted that there was no easy way to sum up what he actually said.  At one point he confessed that there would be no net reduction to NM’s COAH obligation, but he changed that tune after a brief break and a team huddle in the hall.  Kinsey is also Managing Director of Realty Innovations, LLC, a NJ-focused real-estate investment company specializing in mixed-income residential and mixed-use development.  Hmmm.
  • Dolan, their traffic “expert” said that she testified over 1000 times in her 26-year career. On average, that’s a little over once a week for 26 years.  Given that she had to familiarize herself with applications and site plans and prepare her reports, etc., that didn’t leave much time for her to practice her craft.  Rather than being an expert in the field of traffic engineering, it seems to me that Ms. Dolan is an expert in testifying before Boards.  It showed in her testimony. She made a lot of technical mistakes pointed out by objectors, causing her to have to recalculate, and re-testify.  She was also hired to analyze the traffic impact of the development. Rather than analyzing the impact to our community in terms of how our quality of life will be diminished as she was supposed to do, she analyzed the impact to the roads in terms of capacity referring to them as underutilized.  In other words, by her account they can squeeze many more cars onto our roads until we’re like NYC.  Also, unless my eyes deceive me, she spent a good deal of time gaming on her cell phone when she wasn’t testifying.
  • Dipple, their engineering “expert,” (who must be very tired because he is very prone to yawning) was never able to convey to the Board or the public exactly how they can imperviously cover 9 acres and still manage to keep the flood waters off their property, while not adding a single drop to our river. No water will be going on this newly concreted asphalted development, and no water will be going off. So where will all that water go?  Into a dinky catch basin that grew in size as objectors pointed out the ludicrousy of Dipple’s plans -- when, before Hekemian set his sites on NM, the entire property was a catch basin. Despite the backflow preventers they’re adding, raising the property above flood level, and the acres of impervious cover, Dipple actually claims that this massive development will improve New Milford’s flooding.
  • Sussman, their expert in land evaluation, analyzed three subject homes (one of which was immediately invalidated because the shopping center wasn’t even there at the time of the sale); he overlooked recent sales opting for sales from the real estate bubble when virtually anything sold; he used shabby comparables (fixer uppers/needs TLC/as-in condition); he selected homes with the lowest sales; he neglected to factor in important considerations like how long the houses were on the market, and he appears to have manipulated the data to support a conclusion of no impact to home values. He didn’t appraise the homes and is not an active real estate broker.
  • There were two attorneys actively participating in the hearings:  1)  Eisdorfer is an intelligent, sweet, very likable man, who puts on a great imitation of napping during the hearings;   2)  Del Vecchio’s main approach was to object to everything as if he didn’t know what was truly objectionable and figured that would cover his bases.   Del Vecchio seemed more focused on diligently preserving the record for appeal I thought than he did on presenting a sound case to the Zoning Board -- which raises concerns in my mind as to why he would feel more confident that he would succeed on appeal, especially with a sloppy, weak case.

SECOND, how can they be seeking relief via the lawsuit when the Zoning Board hasn’t even decided the application yet? 

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THIRD, we’re mere meetings away from the conclusion of these hearings, how can they explain the timing of this lawsuit?  “Ummm… it looked like we were going to lose, sooo, welp, we decided to try a different approach.” (They didn’t sue directly after the M&C’s re-zoning vote in May of 2013, why now?)

FOURTH, from what I understand, Hekemian has had representation at the Planning Board meetings, and the activity there would potentially result in decommissioning Hekemian’s tiny 24-apartment engine since Brookchester’s Brunetti is apparently willing to absorb our COAH obligation.  So, is it possible that before that could be written in stone, they wanted to get their builder's remedy filed so it would be dated prior to the Master Plan revision? 

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I guess we are supposed to forget that Planner Paul Grygiel was funded to conduct a re-zoning study to see if COAH could be unhinged from the United Water property for the purposes of giving them their commercial zoning. No one complained then.  It’s okay to move COAH off the property as long as you’re going to give us the commercial zoning … but it’s not okay to move COAH if you’re not.

Subrizi wants the study to address the location of New Milford's affordable housing requirement under COAH (Council On Affordable Housing) that the Master Plan rests solely on the United Water property.  Subrizi wants the planner to determine if there is any other part of town where this affordable housing obligation can be met.   http://newmilford-nj.patch.com/groups/politics-and-elections/p/mayor-and-council-authorize-rezoning-study-of-united-decc5f42ae

FIFTH, continuing with this line of thought, how stupid does this developer look filing an exclusionary zoning suit against New Milford when they’ve essentially told our mayor that they would ditch the apartment complex if they can have their commercial 70,000 square foot baby?  Their original offer did not include the affordable housing component -- it was strictly commercial.  The affordable housing only appeared after their original presentation was poorly received at the high school.  And apparently all it would take is one call from our mayor to make it disappear again. Kind of shoots the altruistic inherently beneficial motive right in the ass, doesn’t it?

Mayor Ann Subrizi informed the council during Monday evening's work session that a phone call placed to Peter Hekemian revealed that the original offer he made to the town in April of 2011 is still on the table.   http://newmilford-nj.patch.com/groups/politics-and-elections/p/subrizi-says-original-hekemian-offer-still-on-table

It’s a little obvious if you ask me, but that doesn’t seem to matter to them.  Hopefully, it will matter to the judge hearing this case.  I can’t imagine that it would be acceptable to any judge (who is on the up-and-up) for a developer to use the affordable housing card as a means of coercion to intimidate a municipality into giving the developer what he wants.

As my wonderful friend Lori Barton recently said, “I question the court's intention with rulings concerning Mount Laurel and affordable housing. Was it their intention for already highly developed communities to be FORCED to develop their last remaining open space, especially when you consider a community that is severely deficient in open and recreational space?”

No way.  The Mount Laurel Court couldn’t possibly have intended to arm developers -- who have vested interests in having their wishes granted since it will enhance their portfolios and enlarge their hefty bank accounts -- so they can force municipalities to change their zoning to suit their desires to the detriment of the communities they are invading. That would in essence give public powers to private self-serving businesses.

The Mount Laurel decisions weren’t a license for developers to abuse and terrorize communities. They were a denunciation of the practice of exclusionary zoning.

New Milford is not engaging in discriminatory land-use practices. They’re not trying to zone out the less fortunate. They’re trying to preserve the charm of their community, their small suburban way of life, and their precious open space.  They’re trying to protect their children and their homes and their lives. As Lori also said:  “If Hekemian wanted to build ONLY the 24 units of affordable housing, I don't think there would be a fight. It is the HUGE commercial component that continues to be the deal breaker.”  But that’s the only thing Hekemian seems interested in. Yet he is suing us to remind us of our Constitutional obligation.  Like as if that is the only obligation that exists.

Before being able to consider the general welfare of this billion dollar developer and his 24 unknown tenants who would be paying rent to him, this municipality had to consider the welfare of the 16,000+ residents (from a wide range of homes and income levels, many on and below the poverty line) who would be impacted by this massive development.  So, the Mayor and Council (mostly Council) exercised their “CONSTITUTIONAL” zoning powers to protect the general welfare of the citizens of New Milford by voting “NO” to rezoning the United Water Property. And if the Zoning Board denies this application, it will be because they weighed the good against the bad and Hekemian fell short.

Apparently Mr. Goliath is anticipating that he won't like that.  Hello lawsuit.

I’m not exactly calling Hekemian a sissy, but this move does expose his weakness.  Not only does it expose his weakness, but it also appears to expose his awareness of his weakness.  He can’t win fairly by laying out the facts before the Zoning Board and accepting their decision, so he’s executing Plan B even before the hearings are concluded.  He is obviously fearing a loss or he would have waited the couple more meetings for the outcome.

A strange turn of events, but given the crew we are dealing with, it’s not unexpected.  Totally silly, but not unexpected. 

It will be curious to see what happens next.

Will Mayor Subrizi step up for her community and offer evidence against Hekemian.  It’s not like any more deals can be made at this point without further compromising Hekemian’s case ... and everyone’s character.

Stay tuned ...

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