BY MELISSA KARSH
Staff Writer
RED BANK – A developer lost a bid to have his application heard by the borough Planning Board last week and will have to present the mixed-use project to the Zoning Board of Adjustment for approval.
Zoning Board members voted July 19 to affirm the decision made by Planning and Zoning Director Donna Barr, who denied a development permit for RB Monmouth and RB West, ruling that the project requires a “d” variance because it exceeds the permitted density in the zone.
The proposed development is 1.25 acres and fronts Monmouth and West streets.
Wayne J. Peck, the project attorney, argued at the meeting that the issue is whether the project is two buildings or five, and which board – planning or zoning – has jurisdiction to hear the application for the mixed-use project.
“I wanted them to send us to the Planning Board, where it belongs,” said Peck July 21 after the meeting. “The Zoning Board’s jurisdiction is very limited. You can’t be a little bit jurisdictional. That would be like saying you are a little bit pregnant. Either you are or you aren’t.”
The original application called for 20 dwelling units, 17,300 square feet of retail space and 9,200 square feet of office space in two unattached buildings connected by an underground parking lot.
George Coffenburg, Rumson, of Prudential Premium Properties on River Road, is listed as principal in the LLCs and owner of four of the five lots that comprise the property, according to the Planning and Zoning Office.
Peck said plans were revised to remove the underground parking so the buildings would not have the same foundation and to try to meet the borough’s definition of five separate buildings.
The zoning ordinance allows 14 units per acre as the maximum density in the zone for a single-use facility. In this case, the single-use facility is the proposed apartments, according to Borough Engineer Richard Kosenski.
Barr denied the development permit because she argued that the project is not, in fact, five buildings and therefore exceeds the maximum density, having 20 residential units in one building.
“I have doubt that this is five buildings and I have doubt that this is the intent of the ordinance, so there is doubt right now,” said Barr in her testimony at the meeting.
Kosenski concurred, stating that the 1-inch separation between buildings represents a density greater than permitted in the zone.
“Those five buildings as defined by the building code act and look like two buildings,” said Kosenski. “This proposed multiuse facility – office, retail, residential – comes in at 16 units per acre because the applicant has chosen to purposefully make a building design that has an imperceptible space of 1 inch between the buildings, and it’s apparently trying to gain determination to go to a board that I think is an improper board and will expose the borough to a potential lawsuit.”
The board’s decision July 19 was a unanimous 6-0 vote, with two members recusing themselves, meaning the Zoning Board would hear the application if it is presented in the future.
According to Peck – who admitted the buildings were close together – even if the application changes to 15 feet of separation between buildings, which is the distance the ordinance requires, that would not affect the number of units in the buildings.
“If these buildings are 15 feet apart, there will be 20 residential units in the five buildings,” said Peck. “That will not change. The size of the units may change, but the number of units will not change.”
A condo/townhouse project was first proposed for the site by BLT, Bodman Place, and approved by the Zoning Board in December 2003. The approval granted variances for density, design waivers and several bulk variances.
The application was opposed by residents who objected that the density of the project was too high.
A lawsuit was filed the following March on behalf of several borough residents who claimed conflicts of interest existed between Zoning Board members and the then contract purchaser of the property, Palatial Homes.
The plaintiffs claimed a conflict of interest resulted from the fact that Zoning Board Chairwoman Lauren Nicosia’s father was of counsel to the law firm of Red Bank Mayor Edward J. McKenna Jr. McKenna, DuPont, Higgins and Stone had represented Palatial Homes during the Zoning Board hearings for the BLT project.
In February 2005, Superior Court Judge Lawrence Lawson ruled that the Zoning Board’s approval of the project was proper.
His decision was appealed, with motions filed by William E. Meyer, attorney for the plaintiffs. The state Court of Appeals disagreed with Lawson’s decision, stating that the “of counsel” relationship constituted an appearance of a conflict, even if an actual conflict did not exist.
The appellate court ordered that the application be reheard by the Zoning Board without the participation of Nicosia, who did not participate in last week’s hearing.