Land rezoning OK’d to settle builder’s lawsuit

Ordinance moves borough closer to settlement

By:Roger Alvarado
   The Borough Council has formally approved an enabling ordinance that will amend the borough’s current zoning to allow for 10 townhouse units to be built on a 1-acre site along 13th Avenue and Brooks Boulevard.
   On Monday, the council voted 4-1, with Councilwoman Susan Asher casting the lone dissenting vote, to pass the controversial ordinance. Councilman Michael Polak was not in attendance.
   The move is part of the borough’s agreement to allow the construction of the townhouses in settlement of a builder’s remedy lawsuit, filed when Manville failed to meet the requirements for state Council on Affordable Housing certification. The borough’s current COAH obligation is to repair or improve 26 houses for low- and moderate-income families — 12 of which have been completed.
   The next step in the settlement process will occur on Jan. 24, when state Superior Court Judge Victor Ashrafi will conduct a fairness hearing to determine whether the settlement is "appropriate and fair."
   Last month, the council voted 4-2 in favor of a settlement agreement with Brooks Townhouses LLC allowing the developer to build 10 townhouse units on its property.
   By agreeing to build just 10 townhouse units, down from an original request of 17, the borough avoided having to enter into binding summary judgment hearings, which, according to Mayor Angelo Corradino, could have allowed the developer to build many more units.
   If the judge approves the agreement, he will issue a judgment of repose, which would render the borough immune to builder’s remedy suits for up to five years. During those five years the borough would apply to COAH to get its certification back. Certification from COAH shields the borough from builder’s remedy lawsuits for six years.
   Prior to taking a formal vote on the matter, funeral director Joseph Ketusky, whose funeral home is adjacent to the property in question, attempted in vain to present council members with a written letter from planning engineer Alexander Litwornia which outlined more arguments in opposition to the development.
   However, because Monday’s special meeting was only called for the purpose of having a public hearing on the two typographical errors found during the council’s Dec. 13 public hearing on the matter, Mr. Ketusky’s comments were limited.
   Mr. Ketusky said that by making the changes the newly modified ordinance was no longer the same as the one that was initially introduced, and so he should be allowed to read Mr. Litwornia’s letter that he said raises further issues concerning the site’s density.
   Mayor Corradino argued that Mr. Litwornia should have made his concerns known during the Dec. 13 meeting when he could have been cross examined and not after the fact.
   The mayor and Jeffrey Lehrer, the borough’s special COAH counsel, argued that the only comments they were prepared to hear Monday would be on two changes — the width of an interior roadway on the proposed site from 10 to 20 feet and a dwelling unit’s minimum depth, which is 65 feet.
   "You should have documented your concerns on the 13th and not tonight," Mayor Corradino said.
   After arguing why he should or should not be allowed to introduce new evidence for several minutes, Mr. Ketusky was asked by his attorney Drew Hurley, whether he felt could complete his presentation to which Mr. Ketusky replied "no" and the two men returned to their audience seats.
   Following the meeting, Ms. Asher explained her reasons for voting against the rezoning ordinance.
   "Our town makes ordinances for the people that are in the best interests of the community," Ms. Asher said. "They are not made for people to come in and change them to fit their plan. They are made to be followed through and there should not be exceptions."
   Ms. Asher, who has consistently voted against the settlement, said she was also concerned that emergency vehicles and garbage trucks would be unable to gain the proper access that they would need in order to safely get in an and out of the site, which she feels will be a major safety risk for those that live there.
   On Dec. 13, planning engineers Stan Wojciechowski and Alexander Litwornia were among those asked to speak at the behest of Mr. Ketusky.
   The experts said that additional land would be needed to overcome an "inadequate" amount of drainage basins, wetland buffers, parking area and lack of street width on the current property.
   "If adequate land is not provided to meet the various requirements, there will be adverse effects to the community, the wetlands and the new residents," Mr. Litwornia said at the time. "If adequate off street parking is not provided, people will park on the main street and local roadways, restricting visibility and restricting mobility into and out of the area for emergency vehicles."
   Mr. Litwornia also said that if adequate detention basins aren’t provided, "flooding and deterioration of the wetlands will most certainly occur."
   "The present proposal to create a housing development without a proper site plan will result in a site plan where the developer will not follow state or local regulations to ‘force fit’ more housing units into small lots than should be accommodated," Mr. Litwornia said.
   Mr. Wojciechowski told council members that the site contains Reaville and Lamington soils, which "maintain a very high concern for development, as they exhibit a very high water table, and have a very poor soil bearing capacity."
   Mr. Wojciechowski said that the Soil Survey of Somerset County gives both soils a "severe" rating, which means that "soil properties are so unfavorable and so difficult to correct or overcome as to require soil reclamation, special design, or intensive maintenance."
   He also said that the proposed concept plan does not currently include any area for storm water management in an area which he has "historically conveyed a great deal of water."
   In addition, because the soils in the area have a high water table, the bottom floor would need to be 1 foot above the water table and the surrounding round around the houses would need to be raised by 3 or 4 feet, which "represents concerns for the surrounding community" because the houses would have to be significantly higher than any of the other properties," Mr. Wojciechowski said.
   Mayor Corradino said the borough Planning Board must still conduct a full site plan review of the project once the developer submits an application. During that review, Planning Board members would be able to grant variances and modify the proposal.
   Mr. Ketusky’s representatives have argued that the current plan is so "site specific" that there’s probably little Planning Board members would be able to do.