Responding to concerns posed by the audience during Monday's Mayor and Council meeting, Mayor Ann Subrizi assurred residents that regarding the issue of the development of the United Water property, "My party (affiliation) is New Milford."
Subrizi's statement came on the heels of SOD's protest march organized to air their opposition to the Mayor and Council's proposal to rezone the United Water property. SOD is requesting that the Mayor and Council wait until the application has run its course through the Zoning Board before any consideration is given to rezoning the property.
Hekemian's proposed development calls for a 70,500 sq. ft. supermarket, a 4300 sq. ft bank, a 221 unit multi-housing complex and a four-story parking garage.
Although the United Water property is currently zoned residential, page 56 of the Borough's 2004 Master Plan explicitly deems the property "currently underutilized" and recommends mixed-use development. Hekemian is hinging much of their argument before the Zoning Board on the language of "mixed-use development" as designated in the master plan. Also, the United Water property has been designated by the 2004 master plan as the location where New Milford will satisfy it's affordable housing obligations.
During the Sept. 10 work session of the Mayor and Council, Mayor Ann Subrizi informed the council that a phone call placed to Peter Hekemian revealed that if the council rezones the United Water property, the original offer he made to the town in April of 2011 is still on the table.
The original offer that Hekemian made to the Mayor and Council and presented to the residents of New Milford in April 2011 included a 145-space parking lot for use by the borough and school district, and a graded field that could be developed into a soccer field, as well as a new Shoprite, a family restaurant, bank and 10,000 square feet of commercial space for local merchants.
Subrizi contends that rezoning is a pre-emptive strike in anticipation of an appeal that she believes will be filed by Hekemian with Superior Court. Once in the hands of Superior Court, any and all decision-making power over what happens to that property is removed from New Milford.
Several land use attorneys agreed that rezoning prior to the Zoning Board's decision can be an effective preemptive strike if the Mayor and Council of a particular town feel that an appeal is imminent.
"The chance a municipality may take in waiting for the application to run through the (zoning) board is that the appeal may go through the courts faster than the rezoning can be effected, especially if another town or entity challenges the municipality's rezoning of that particular property," said an attorney following the hearings who asked that his name be withheld in case he does become involved in this particular matter. "If a third party comes in and challenges it, that can delay the (rezoning) process by months."
Should Hekemian appeal the decision of the Zoning Board, the appeal process requires that the court consider only the record of the hearing which includes the testimony as it appears in the transcript, New Jersey land use laws, and COAH obligations as proscribed by the New Jersey Supreme Court.
Regular attendees of the Hekemian hearings are familiar with the fact that the hearings are being conducted as a court proceeding, replete with objections barring certain lines of questioning from the public and exhibits being filed.
The Hekemian Group has also hired their own court reporter whose transcripts, along with NJ land use laws and New Milford's COAH requirements, are what the courts will take under consideration in rendering their decision on whether to grant Hekemian the variances they are seeking.
As Zoning Board attorney Scott Sproviero has made clear during the hearings, any argument presented to the court is limited to the testimony and evidence given at the Zoning Board hearings.
During an appeals process, the “Time of Application” bill is favored among developers. This addition to New Jersey’s Municipal Land Use Law states that development regulations (statute or ordinance) in effect at the time that a site plan is submitted is the one that will govern the decision of the courts.
Any provisions of an ordinance, adopted after an application is submitted, is not applicable to that site plan application. The "Time of Application Rule" took effect May 2011.
However, municipalities favor the "Time of Decision Rule" that allows them to amend a master plan with regard to zoning even if an application was already under consideration.
In Mahwah, the developer of the Crossroads project--a proposed 600,000 square feet of retail space--filed their site plan application one day before the mayor and council voted to repeal the ordinance that changed the site use from office space to retail. The developer is arguing that the "Time of Application Rule" should apply here while the council says that the "Time of Decision Rule" should hold. The case is still being heard in superior court.
Subrizi added, "There's also no guarentee that if we decide to let the application run its course through the Zoning Board, and then rezone, that Hekemian's offer will still be standing."