Town ctr. witness’ credibility questioned
Finite issues will be addressed by other experts, attorney says
By Elaine van develde
Staff Writer
MIDDLETOWN — The Zoning Board’s hearing on an application last week to build the township’s first town center turned into a battle of the attorneys over credibility and just how much the little things should count right now.
The special hearing, held April 30 at Middletown High School South, drew a half-filled auditorium of people who came to hear the cross-examination of the first witness for the town center — Herbert Simmens, a Princeton consultant and former executive director of the N.J. Planning Commission, appointed by former Gov. James Florio.
The hearing, the second on the application, was continued to May 23, with the location to be decided. Residents will get a chance to question Simmens at the next meeting.
Though unveiled as merely a conceptual plan more than a year ago, the reality of such a center has come nearly full circle with the start of the hearings. People on either side of the issue have stood poised and ready to say their piece.
The applicant, Mountain Hill Group, LLC, is seeking a variance to expand the parameters of a planned development zone, which permits a town center, by 52 acres — from 85 acres to 137 acres. Such an expansion would make way for the proposed $150 million, 1.7 million-square-foot town square or mixed-use development, along Route 35 north, from Kanes Lane to Kings Highway East.
The plan calls for a large percentage of retail development, with some civic, cultural, entertainment, and housing and educational elements. The variance applied for asks that the planned development zone spill into what is now a light industrial zone to make what the developer calls a "sense of place" dream come true for Middletown, into a reality.
Zoning Board Chairman James Hinckley reminded the crowd that the board is "a quasijudicial board. Decisions must come from the board based on evidence [over] a backdrop of the law."
Mountain Hill attorney Gary Fox of Fox and Gemma, Ocean Township, maintained at the onset of the hearings that the variance is needed because his client wants to "apply one set of standards to one zone."
Employed by Mountain Hill to provide the testimony and expertise, Simmens’ stance is that a town center is in compliance with state and township master plan ideals. He called the town center concept smart growth which prevents suburban sprawl, and contended his expertise in planning justified his view and that of Mountain Hill.
Ron Gasiorowski, a Red Bank attorney representing Heritage Hills Homeowners Association/Concerned Citizens of Middletown, staunch opponents of the plan, took issue with Simmens’ statements. He called into question the level of Simmens’ town center knowledge and his planning expertise at the municipal level.
Gasiorowski maintained that during Simmens’ 30-year career, he spent only seven years, from 1981 to 1988 as a planning consultant. Simmens had spent time from the 1970s through 1980s as a county administrator and manager for the township of Galloway, positions in which he said he provided input for master plans, though "not start to finish."
Gasiorowski attacked the credibility of what he said were finer points that an expert witness such as Simmens should have knowledge of and did not. He also criticized him for not being well enough informed about Middletown’s town center zoning requirements.
Hinckley commented that Simmens’ testimony was intended to be conceptual.
Gasiorowski then went on to say that the "state plan itself specifically focuses on the town center [concept]. Is the word town center in the Middletown ordinance?" he asked.
"I do not see it," Simmens said, looking at the document.
When asked if he had visited the town center site, Simmens said he had been at the site once, maybe twice.
Gasiorowski continually criticized Simmens’ limited knowledge of the site and its characteristics, noting that Simmens had testified extensively about Middletown’s characteristics, the site location and surrounding areas and why, because of those characteristics, such a town center fit the Middletown planning puzzle perfectly.
Fox repeatedly objected to what he called microscopic queries made by Gasiorowski with respect to this particular town center. He said that the future hearings would bring the testimony of other experts with more specific knowledge of this plan, adding that Simmens’ testimony was meant to be on a "macro, rather than micro" level.
"The witness did testify about the site, the characteristics of the site and how it fit with the master plan and state plan," noted Hinckley. "You allowed him to focus on those subjects, and in so doing opened him up to those [Gasiorowski’s] questions," he told Fox.
After what Hinckley ultimately referred to as a cross-examination "ceasing to become a cross-examination and becoming a dueling lawyers’ " scene, he said, "The board makes the decision on credibility of a witness. Any witness can testify in any way he wants, and it stands as it is. The board makes the [credibility] determination."
Gasiorowski deferred to a more general question asking Simmens if, in his opinion, what was proposed by Mountain Hill was a town center according to state planning standards, or rather a town center core, which Simmens had described as the commercial/business hub or "metropolitan center" of a town center. Simmens said it was, by all state planning standards, "comparable to what the state defines as a core." He added that a true town center typically has a core around which neighborhoods and "other environments" are built. This plan calls for some 200 town homes and/or above-office apartments, and four single family homes.
"The real issue," Simmens said, "is how do we get to the best town center plan … in substance and outcome."
Sticking with his area of expertise, Simmens responded to questions concerning the state’s intent in bringing in town centers to New Jersey. "The state plan advocates a strategy to accommodate for 800,000 jobs and 1 million new people coming to New Jersey," said Simmens.
Hinckley countered "These guys who come up with these concepts have never tried to drive a highway or get a glass of water [around here]. … [Advocating accommodating growth like that] makes me suspect of the way we’re going."
"The mandate of the state plan was not to stop growth, but to manage it," Simmens said, interjecting that all was done in concert with achieving a higher quality of life.
"It just seems we’re pushing growth in this area and leaving others empty," said Hinckley.
With respect to open space in the plan, Gasiorowski pushed for reasoning from Simmens on why the variance was needed to build in an area that he said was half wetlands and couldn’t be built on anyway, as far as he knew. He implied that Mountain Hill’s intent was to count the wetlands area as open space in the overall development, satisfying the open space requirement for the developed tract without sacrificing buildable space.
Fox said that environmental experts would handle that testimony.
Ultimately at issue was whether or not seeking a variance was indeed just another way to expand the planned development zone (where a town center is allowed). "The variance is not [a way] to lead to an increase in the size of the project," Simmens maintained. "The town center concept is sweeping the nation."
Though Gasiorowski questioned, "Is it as valid in the Midwest as it is in Middletown, N.J.?" Asked, by Gasiorowski and Red Bank attorney Armen McOmber, if there are any successful town centers that he knew of in New Jersey, Simmens said one in Washington Township, Mercer County, was under construction, while Forrestal Village in Princeton was a pioneer town center that failed in certain respects, so the concept was being refined.
"Nothing in Middletown has been endorsed [by the state]," Gasiorowski reminded the board.