I add the safy okay ready I would like to advise all those present that notice of this meeting has been provided to the public in accordance with the provisions of the open public meeting act and that notice was published at Jersey Journal City website copies were provided in the record and orall Ledger and also placed on a Bolton board in the lobby of City Hall any written objections if any shall be made to the city clerk please rise to salute the flag to the flag of the United States of America and to the Republic for which it stands one nation under God indivisible Liberty Justice for All uh it sounds like you didn't have it with you or M Mr con Mr Doyle pres M fiser I'm explain it Mr jaor here Mr Pano present Mr Cano present Mr Ros m Russo president gtino here she can't hear you you have to be louder well going to participate that much once we get started okay um yeah just okay so councilman Doyle is going to let me brief everyone on what we are doing this evening I just let me do the uh can you hear me resolution for zoning appeal for 325 329 Grand Street you can explain it right now okay yeah thank you council president president thank you all right so we haven't done one of these in I think close to a decade so I think it's worth re reviewing some of us have never done it uh some of us have been in been in the cheap seats when they've occurred so um I I'm going to give a little bit of an explanation I do want to ask Mr Evers to think about I'll give you a little time while I'm explaining something else but that we are the the procedural plan is to have the three parties that are relevant to this the appellant Mr Evers the applicant represented by Mr uh tuel and the zoning board itself which is represented by Miss Nai uh it is your appeal so we were we thought it was logical to have the applicant go first so that laying out what the application is and then frankly whether you want to go second or third is your your call third would be good okay so then miss Nai you'll go second and explain you know what happened at the uh zoning board without and then Mr everage you're on um so the next two things that I want to explain clearly because the the law is is clear in this area that the the standard of review which if if who if any party is disgruntled at the end of this process they certainly can file a lawsuit and challenge it and the standard of review that we are going to be exercising here tonight which I will explain is very important because if we get it wrong then that's the grounds for the decision whatever it may be to get thrown out and sent back to the either here or the zoning board so the standard of review what something that's a little unusual and I think Mr everage this will be good news to you um the standard review is called denovo and on the record if Mr Evers had elected to go directly to court rather than to choose as he has a right to do this forum the standard of review would have been uh it would have been arbitrary capricious and unreasonable which means the the judge in that circumstance would have to determine whether the plan the zoning board made an error which is a higher standard saying that they screwed up than a standard of denovo which means a new so we are here and the six of us can we are limited to the record that's what the record review part is you know and I Mr Evers is not in and I'm sure the the council for the other two parties know that new things cannot be brought up tonight that were not brought up at the zoning board hearings the two hearings that occurred so you're you're limited to the record that was made and this is we are looking back upon the decision that the zoning board made and deciding whether we think it should be overturned or not and our standard the denovo standard means if we don't have to determine that the the zoning board made a mistake all we can just determine that we disagree with what the zoning board did which is a lesser standard um than a standard of us having to conclude that the zoning board made an error um this is a this is not a public hearing this is a public meeting and a distinction being Mr Evers is the individ idual who filed a timely notice of appeal of this decision the world did not so there there will be no public comment because everyone in the room other than Mr Evers and the party's Council are here and they're welcome to to witness but but as far as participating that's not the way these work so if you think of Mr Evers have had he gone to to court and he was before the judge if if friends and supporters came they wouldn't be able to get up and make appeals to the judge because the judge is there to listen to the appellant and the applicant and the zoning board lawyer who's defending the zoning board so but because this is an open public meetings act meeting and we have to have afford the public an opportunity to comment after after the decision a decision is rendered assuming it is tonight it's possible we'll defer to another meeting um then the public is welcome to to get up and comment as they see fit so I I I know that that sounds somewhat silly but not silly in the sense that we let the public comment but because we are limited to the record having the public come up and express all different views and and opening the the floor up to parties that are not party to this appeal is not appropriate so with that uh and I I don't know whether I'm sort of stalling a little bit in case M uh councilman Ramos because this is a quasi judicial proceeding we are essentially acting like judges here um the if someone one misses part of it they cannot participate in a vote and we we know that councilman Cohen is unavailable and councilman Russo is recused because of the proximity of his home so they we know they're not coming but we just we just didn't excuse me we don't know whether Mr Ramos is on the way and if he is it's worth waiting a moment so he can participate but if we're only going to go so far cuz we've got essentially we've slated an hour for this and this we we can continue this Beyond 7:00 we've been determined so we're not crunched in that much but um each party will have seven minutes to express to amplify their positions that they've already um he's not he won't be here for at least another 10 minutes so we should start without him okay but you're telling him not to come Jerry right yes okay so and the the council here the board can I I would I would suggest that we let the uh the The Advocates Express their views before we interrupt them with questions but certainly when they finish we can ask questions after each one we can ask questions at the end to to do our fact finding if we have questions so with that I think Mr Tel you're uh you're up and councilman everyone gets each person gets seven minutes yes that's yep okay good evening council president uh members of the city council Jason tuel I was the attorney for the applicant um at the Zoning Board of adjustment and I'm the attorney for the same applicant that's here in this case we're not the appellant we're the I guess the defendant or the uh the applicant that's defending the approval so what I'm going to do consistent with what councilman Doyle just mentioned is I'm just going to give basically a closing statement of what occurred and summarize what occurred on the record below so I'll I'll do what I typically do at at the zoning board or the planning board for those of you who have seen me there I just want to make sure every member who's voting has reviewed the entirety of the record so that we know that they're all eligible to vote as well so that that I think is important just to know that everybody's reviewed not only the transcripts but the plans the application materials all the reports the resolution the entirety of the record the exhibits at the he ing just making sure that that's part of the whole record so we can do that at the end or we can do that um uh whenever the whenever the council sees fit so this is an application where involved three Parcels of property 325 327 and 329 Grand so this actually presents a unique opportunity within the city where you have a property assemblage where you can develop it cohesively that doesn't always occur usually we're developing property by property whereas here we have a unique situation to develop three Parcels in unity and cohesiveness and I'll explain why that's important later we also have a very unique piece of property in the sense that it backs up to a multi-story parking garage of the city so you do not have the conventional dnut hole in the block that the city council that the planning board that the zoning board are typically very conscientious about when they review applications to determine what the effect are going to be with regard to light air and open space in the rear yard that's not present here because we have a multi-story garage behind us essentially a large brick wall behind the property so we have a very unique site the other things that I want this Council to remember as part of the application was there's no storm water management on this property today zero many of the current residents in the building or buildings reside in the flood plane which is now not permissible within the city if you're read developing the goals of the city are to remove residents from the flood plane here we have multiple residents living within the within the flood plane the building's not ADA Compliant the building does not meet current fire and building codes so we have a interesting opportunity here to redevelop a site consistent with goals and objectives that the city has been trying to achieve so this proposal was driven by the master plan goal that the 2018 land element that the city and the planning board adopted so the proposal is for 22 units at this property 22 units okay 22 units at this property that'll be comprised of for the most part one-bedroom units there's Studios as well and another two-bedroom units and a three-bedroom unit and I'll get into why that is in a second what's also important is that the square footage of the one-bedroom units here are between 6 and 700 squ ft why is that important because the master plan in this area calls for a diversity of housing stock calls for smaller units in this location and I'll get more into that um in a second so the applicant at the hearing presented multiple expert Witnesses we had our architect John nasu testified as the project architect Stonefield engineering design testified with regard to civil engineering traffic engineering and then we had a professional planner also testify in support of the variances in addition to that the board of adjustment also had its professional planner and its uh professional engineer review the application and we agreed to to uh to to comply with all the comments set forth in their letters and I'll get to that in a second okay so this case the reason that we're at the city council is because there was a d variance granted with this application so what does that mean pursuant to the statute there are six types of D variances in this situation only D5 was granted for density the use here is permitted this is not a use that's not permitted in the zone and we also don't have a D6 variance for height we are less than 10% above what the what is what is permitted in the in the zone so we have a use that's permitted and we don't have the enhanced burden of proof that the bden of adjustment is typically tasked with for a use variance we're not governed by the medich standard we don't have to show particular suitability we don't have to show the enhanced quality of proof on the negative criteria and reconcile it with the master plan none of that is President we have a relaxed standard of review that's governed by the following case grubs versus slothower 389 NJ super 377 and that case is fairly recent it's not an Antiquated case it's actually from 2007 and a and a then it's a published appell division um decision so I'm GNA I'm going to provide some quotes from that case just so the board understands the criteria it says however the successful applicant need only show that the site will accommodate the problems associated with a proposed use a greater density than permitted by ordinance and then we have to show the positive and the negative criteria so all we have to demonstrate and you have to do this for D3 D4 D5 and D6 is that the site can accommodate the additional what you're proposing so in a D6 it would be additional height in a D4 it' be additional F all we're here is for the additional density and that we have to demonst rate that we can the property can accommodate that so what are the typical issues that are associated with density is with density and the case law talks about this parking traffic light air in open space storm water management can we accommodate those additional items so if the you reviewed the record below the applicant provided unrebutted testimony with regard to all of these issues so with respect to parking we're in the art 2 Zone we are not in the R1 zone so R2 you are required to provide parking on site okay the first five spaces are exempt and then you have to provide a one for one ratio after that so we are required 16 spaces here we are providing 16 we're also we also have an oversized property because we have three lots that were assembled so all the drive aisles if you read the testimony there's no issues with backup spacing the Ada parking requirements are all met so parking was issue we comply in addition to complying with parking we also are are supplying EV charging stations for stent to State Statute and we went Above and Beyond on the EV the board also required us to prewire all the spaces by law we only have to provide one but we are pre-wiring all the spaces another public benefit associated with the project traffic we provided a traffic report all all the traffic issues were deemed to be fine storm water management provided in an entire new storm water management system at this property it will be exceed North Hudson sewers requirements it will be a benefit to the existing property and the surrounding properties if you read through the transcripts all this would be a huge benefit with regard to storm order management how much time do I have left all right I'll be I'll be I'll be I'll try to summarize everything else very quickly so the master plan I think that's the key here the master plan calls for exactly what we're proposing here it calls for a 3 30 density Factor we're at a 330 density Factor it calls for 22 units that's exactly what we're providing we followed the guidance of the master plan in this location which is why the positive criteria and the negative criteria are both met there's no substantial detriment to the public good because our storm Water Works our parking Works our traffic is not a problem and we're consistent with the master plan we're doing exactly what the 2018 master plan calls for at this location so those are some the things that I wanted to mention um rebutting some of the items that Mr Evers put in his in his uh papers rent control I know that that is a sensitive issue I know it's an important issue but it is not a zoning issue it's not something that this board or that or that the board or now the city council can consider with respect to a land use application this board the board and the council could only consider items in the zoning ordinance and the site plan ordinance that is unequivocal within with within the statute if I maybe if I ask a question it will give you a moment but you're saying the mlu the municipal land use law is not also part of that it's only the zoning no no no the municipal land use law is obviously is what gives is the enabling act for the zoning boards and the planning boards which demonstrate that a zoning board can only consider the following things the zoning ordinance which it interprets and the site plan and subdivision ordinances that's it there are other powers of a zoning board to hear appeals interpretations that's not what's present here yes the municipal lanus law and I don't mean to speak for Mr ever certainly he'll get his time but it does seem that the Crux here is the question of you know whether the board appropriately or inappropriately did not consider other laws outside of but going but just to protect the record and to make sure we're doing this exactly the way that we're supposed to you had indicated and I agreed with you at the beginning that this is a denovo review as to whether the zoning board acted appropriately you may consider Mr ever's comments as you know or his arguments but you're actually looking at the entirety of the record so I wanted it to be clear when I did my argument that we met our burden of proof under the law Mr Evers he's allowed to make whatever arguments he wants but this Council now is reviewing what everything that the zoning board did that's his attack on it but I have to assume as the applicant's attorney here that you're looking at the entirety of the record and not just what Mr Evers put forth in his papers so I have to assume that because so that's why I went that's why I wanted to make it clear that from the record below we met our burden of proof Mr ever's arguments I disagree with completely and Miss Nai can go through them in more detail but again the rent nobody is is put is saying that rent control is not important it's just not a zoning issue and this property is actually get which is a zoning issue is getting two affordable housing units as a result of this project if we were not if we which is quiet please so but but would you not agree also that and I know you're 7 minutes for two thre hour hearings is yeah is a is certainly a summation to say the least but but the denovo review means you said you satisfy the criteria and and that means that the zoning board agreed with you but we are here and looking at it aresh so if we we don't have to take that vote as with any difference that's why I wanted to go through the entirety of the record and the rent control the rent control issue if you agreed with what Mr ever said in his papers then there would be no reason for zoning laws in this city because every time that you had a rent control apartment there you couldn't so if you if I went if I went to the plane planning board as of right you could get 11 units here you would provide no affordable housing and the rent control issue would still be there where you would the rent control Apartments would would would would go away even if you were at the planning board by doing the approval that we did you get two affordable housing units you get all the storm water infrastructure the additional green roofs part of it okay okay um I'll let Miss Nai can I reserve time for rebuttal in case I think certainly if council's asking questions of you you'll be back up here so sorry I didn't mean to go over it's we just want to be fair to everybody it was a long hearing I wanted to make sure so if you're cutting me off yeah but you can ask isn't isn't the fact that it's 100% lot coverage of variance as well yeah I just wanted I just went through I wouldn't have been able councilwoman Fischer to go through the entirety of this record in seven minutes but yes we but 100% lot coverage is a big variance and that's the one you chose not to include he he he alluded no because the appeal here is on the is on the D variant he mentioned backing up against the brick wall yeah so so so so the 100% law coverage if you want me to answer that question I will was for two reasons one was to comply with the parking in order to make sure that the parking worked the other was if you read the if you went through the record the storm water management worked better with the 100% lock coverage because of the area where the property AB buts next to the um next next to the hospital parking lot wall by having the 100% lock coverage the testimony read and the board engineer agreed with our civil engineer on this issue we were able to place a substantial green roof on top of the garage which was the 100 only at the first level not the second level not all the levels going up that green roof that we were do at 100% lock coverage was able to take the water in better than if it was just pervious and the board engineer and the applicants engineer indicated that and the case law says and I know I'm running out of time but as we cited in our papers the board can't ignore the fact that that or the council in this regard you can't ignore the fact that that testimony is unrebutted by any experts but but had you not sought a variance for 22 rather than 11 units you would not have needed as much space for parking we still we still would have needed the parking you would have needed six spots not that's correct 16 correct 17 that is correct it you know I mean you can't necessarily have it both ways if you you you asked for the variant and then you say because of well there was also another reason for it too if you want me to answer it we don't have the doughnut hole in the situation so in the in other situations where we would have backed up against for example other residential homes backyard to Backyard like you typically have on a Hoboken block we don't have that here so that light open light air and open space issue is is not is not present the way it would be in a typical scenario that's why I opened with the fact that this is a very unique piece of property and the engineering took care of the 100% law coverage issue okay I'm all right Jason could you please sit down and I I just was wanted to answer the question yeah yeah no I I you were asked questions and you answered them but um I see we're going to go a little over on all of these I suspect to be fair I will try to be very brief uh yeah that's coming down to you well I love this you like that good evening honorable council members nma and Abby of their firm MC madman Scotland and Balman appearing on behalf of the Zoning Board of adjustment I submitted a response uh to Mr ab's appeal filed with this with this body and therein I cited the reasons as to why the board uh acted the way that it acted the board is a creature of Statute and can only exercise those Powers Grant to granted to it by the legislature and what happened is in 1947 New Jersey state constitution basically gave the legislature the ability to Zone and they delegated that responsibility to municipalities in the state of New Jersey that that that obligation is found or the just move Clos to the mic the closer you are to the louder is yeah okay better there you go so what happened is the state of New Jersey adopted the municipal land use law and that is the statute that we are bound to follow we cannot digress from it because because if we choose to do so if we do so as a land use board whether a planning board or a zoning board we can found to be we can be deemed to be arbitrary capricious and unreasonable and we can be reversed so if you look at the municipal land use law njsa 40 callon 55d d70 and 76 that's where the the powers of the board are circumscribed uh one of the delegated powers to the board unfortunately one of the delegated powers to the board does not include rent control I understand that it is an important issue I think it's laudable to preserve rent control unfortunately we do not have the power to do that and so in response to this this continuing discussion regarding rent control what the board did was they added a condition in the body of the resolution all of their resolutions providing that the applicant shall comply with all anti- eviction laws I know it may not seem like a lot but it's the only thing that the board is able to do if the board were to deny an application for that reason again we would end up in court and what would happen is the judge would remand us back because it is not a land use issue and I know that uh I I've been uh I'm under my 7 minutes but I'm happy to entertain any questions anything that I may not have covered in my brief or tonight a question um so I I guess my question is I I know that the land use does not articulate um rent control I think the argument though that Mr Evers made about just the negative impacts on a community if you were just to remove rent control forget rent control for a second you just have a building that is occupied with a number of tenants and so is there an interpretation just in general about it being a negative criteria that you effectively have to empty an occupied building in order to build a new building without even mentioning rent control does it fall under some of the characteristics that Mr ever's pointed to um both in our in our master plan as well as land use in terms of the purpose of land use the purpose of of our zoning to protect the health and safety and Welfare Etc a lot of the things that he pointed to kind of subjectively seems like it could consider you know displacing an entire building of people knowing that that is the intent as a matter of fact I think the intent of this application is very specifically to empty these buildings of the people that live in it to take it down and rebuild just new buildings which I think another thing that was mentioned was that intent actually may fly in the face with State's anti- eviction laws anyway so I can't respond to the intention of the applicant in filing this application the only thing that I can say in response to that is under the municipal land use law that's njsa 4055 d-2 that sets forth the purposes of zoning and again the key word here is zoning so that's what we're relegated to consider we're not allowed to go outside of that box that has been created and with regard to the variances that are being sought they have to somehow relate to the property so for example if you're seeking um a variance let's make it up a a a a bulk variance of some sort let's say that you have an undersized lot you can justify the grant of that variance under section two of the ML and because again rent control is not a delegated power of the board it doesn't fall Within that within those parameters so on just on that um direction that you just took it so we are my interpretation of uh all the cases that were referenced Etc is we have to only we don't have the luxury nor does the zoning board have the luxury to determine if they like the project what they are statutorily required and what we're statutory required to do is determine whether or not we believe the variance is Justified that the positives outweigh the negatives Etc so your starting point is what you're allowed to build as of right there lot coverage density of 11 Etc and are there incremental positives not what's required so my understanding is for example flood restrict flood um mitigation is required um affordable housing is required 10% so we can't consider affordable housing as a positive we can't consider um just your your basic basic anything that's basic required within our zoning it's only if whatever the incremental positives are that should support this variance is that a fair interpretation it it is a fair interpretation I will say that the board heard this application I think over the course of maybe two hearings I I I believe though we we covered it during two hearings and the applicants professionals provided professional testimony justifying the grant of the variances and the associated benefits I understand everything commissioner Fisher that you've said this evening but I just wanted to bring to the council's attention that this is something that was considered the board heard the testimony agreed with the applicant the applicants professionals and granted the requested relief the board determined that there were benefits associated with the the granting of the variances the ones that were mentioned by Mr tual and I don't think that the council generally you may not want to hear from me on that issue since you've already heard but the affordable units the uh you taking uh units out of the flood plane and providing on-site parking with EV charging stations so all of that was considered by the board in evaluating the but can I interrupt for again for a second other than actually all of those things are not positives those are just required they're not additional enhancements they don't exist right now but if this building was empty and they built as of right they'd be required to have parking they'd be required to have EV they'd be required to have if they built to the um as of right density of 11 they'd be required to have one affordable housing unit so the no they wouldn't actually but they would okay but but but even but the variance is now what's required under our law is to have two units because they they're looking for a variance a density variance right so 10% of whatever they're building correct now I'm looking at the resolution and I'm sorry I don't have it to the page um that I'm put in the pages that I recited in the memorandum that was submitted to this honorable Council but what the board did do is in conjunction with the testimony that was offered by the oint planner what they did was what I did was I captured the testimony from Keenan Hughes a licensed professional planner in terms of the benefits again associated with the municipal land use law section two I captured those benefits and they are specifically articulated within the body of the resolution itself and that is what we are obligated to uh you know you can either accept or reject that testimony the board accepted that professional testimony from Mr Hughes if I can ask a question and I think I know that uh council president was also struggling with this notion of the public the the benefit the you know the positive and negative criteria and um councilman Fisher and tell me if I'm wrong but I uh M Nai but my understanding was you know unlike in a Redevelopment Zone where we say uh if you give us additional public benefits we will give you incentive you know an extra floor on the building in that instance I completely agree with you that you wouldn't if someone said if the law says You must require X affordable housing units in this Redevelopment plan they're just doing what they're required and they should not get any additional density or whatever but I I I was under the impression that not withstanding the fact that here if you have a d variance for density which if they had 11 they wouldn't have a d VAR then they the 10% affordable housing kicks in and so but the fact that they're choosing to ask for a d variance for density and With It Part and parcel providing two affordable units I do believe that that can be considered a public B uh it could be something in the positive and negative or not that it's a a give back so to speak but it's something that but isn't it required under our law it it is required but they're not required to ask for the variant and someone might say you know we we like the fact that this is going to occur you know so I'm not saying it should tip the scales significantly but I don't think you disregard it out of hand because it is clearly something that is a I think most of us would agree is a is it's positive to have two additional you know affordable housing units that'll be regulated by the city for I the only thing I would add is if I don't I don't disagree that it's a positive we all want more if it was three because our law required two and they did a third one that's a benefit it's not to me that's a benefit two is required two is not a benefit it's beneficial we like it but it is not it comes hand inand the only reason why we're getting it is because they're asking for variance and it's required that's just my interpretation which is a different no it's and I think it's very squishy this positive and negative it's not like they have a list to check these 13 things and other than that you know it's not positive or it's not negative right so and if I could add one thing basically the boards land use boards are entitled to difference as a matter of law statuto we're entitled to difference what the board did here and what I would say every land use board does in the state of New Jersey is we weigh it we weigh the testimony the positive versus the negative criteria and then the board makes a decision and so that's exactly what the board did in this no standard your Defence is out the window absolutely so we we don't have to I mean I do think the board members who spent eight hours and you know I mean they I think got into the weeds a lot more than we have but that doesn't mean we have to accept their decision absolutely Comm Doyle and that is why I put the standard in the body of my memorandum so Council this honorable Council was aware was aware of the standard of review I do have a question about the positive negative so a commissioner on the zoning board can can say okay the current building does is not up to fire code the new building will be that's a positive like is that something they could see as a positive or the flood mitigation I think flood mitigation storm order management is those are more of public benefits in terms of doing to commissioner Fisher's point something that you're required to do anyway I mean I think well the flood mitigation they are required to do they're required yes I think they exceeded it in this I mean that's back to your three units versus two but I I think the the challenge is that whenever you have a new building versus an old building then you can't compare a new building versus an old building for purposes of a variance you have to compare an as of right building with with the building that has a variance so an as of right building would be required to have fire code storm water management Etc a an so that's a new building and another new building with a variance has the same requirements they might have more the the the storm water that they're talking about here is a system that seems to be what they've testified is the storm water because of the variance it has a a better capacity or better function it would would operate better because of the scale of the building that they're putting there versus if they had built as of right but fire code versus not fire code is not a positive we can't compare new with old understood yeah uh I will let Alissa yeah I mean is this your opinion or I I just want to make sure that we're all on the same casage that the positive criteria is not whether there's a oh wow whether is not whether there's a benefit that exceeds the as of right option the positive criteria is whether or not the purposes of zoning which are enumerated in section two of the land use law are met and our professional planner and the board in its resolu ution en we only need to prove that we advance one in the resolution of approval and the testimony provided it was enumerated that several purposes of zoning were Advanced by the project so I understand what councilwoman Fischer is saying that you know we'd love to get benefits out of variances but that's that's not necessarily the test the test on the positive criteria it's whether certain aspects of the municipal land use law the purposes of zoning are Advanced and those that was and there was many purposes there's no time to go through all them but if you reviewed the record it was indicated that those purposes were Advanced thank you H how about we get on to Mr iers I I feel like you're cooling your jets my cushion exactly and we'll we'll be sure to give you the appropriate additional time stopwatch so I don't go over the additional time um I thank you very much for having this hearing and and I I I would begin by a I would begin by apologizing I realize I'm putting you all on the spot because uh contrary to what we've heard so far this appeal is really about protections for tenants and tenants rights uh this talk of rent control I mean I agree with rent control and certainly am a big fan of affordable housing but that's not the basis of this appeal and I think you know I'll give the benefit the doubt to the attorneys that they weren't trying to steer you guys into deflection um but that's the net effect what this is about is a request that you remand this decision to the zoning board if you want to overturn it be my guest but I think there's some constructive value to remanding it with instructions which is a very common thing all right um what would the legal reasons be for remand there's a whole bunch of them but I think the simplest one is that the resolution of approval fails the standards for what those resolutions are supposed to say and as you know from the uh letter of appeal uh we had a recent decision by a sitting Superior Court Judge who went into great detail as to what's wrong with the resolution of approval that the Hoboken zoning board is using and and I was kind of stunned to see that they hadn't learned anything from that experience and they have all the same defects If This Were to go to a Superior Court Judge I I would have considerable confidence that it would be remanded so I think legally you were covered that way now the issue here really is instructions and that's what this whole appeal is really about as as was asked at the um Zoning Board hearing um and you can see it in the testimony people were talking about that we're getting two units of affordable housing and the question was asked by myself and other people and you're destroying six 16 units of rent controlled housing uh how is that a how is that a positive benefit okay so what I'm suggesting is that they've acted in an arbitrary and capricious manner because they have once again produced a zoning resolution that does not meet the standards of case law or for that matter the recent Judgment of a judge although that's that's not a published opinion so it it doesn't have the same Force okay the real reason though or the addition reason why this should be remanded and overturned goes to the very heart of the municipal land use law and frankly it's one of the reasons I wanted to do this at a um city council hearing rather than in Superior Court and I got to save the $250 fee so there was that benefit to um the the applicable part of the M Municipal land use law that handles these section D variances reads or in part one of the paragraphs says no variance or other relief may be granted under the terms of this section including a variance or other relief involving an inherently beneficial use say the affordable housing units without showing that such a variance or relief can be granted without substantial detriment to the public good it will not substantially impair the intent and the purpose of this and would not yes substantially impair the intent and the purpose of the Zone plan and the zoning ordinance now the whole point here is that I would contend that based on so many of the ordinances that Hoboken has adopted the rent control ones come in there that an approval that puts 16 people at risk of having their lives blown up by being displaced from their homes is a substantial detriment to the public good all right the remand that's being asked is not to tell John Nasi that his building isn't any good it's a it's a very nice building the fact is though that in their conditions of approval the zoning board sees no problem in stating that the developer needs to abide by the as they call it non- eviction laws they're actually called the New Jersey eviction laws uh so they don't have a problem and don't see that as overreaching to instruct the developer with regards to how they're going to observe those laws and the request is simply to remand this to the zoning board with specific instructions to generate robust conditions to protect those tenants now why would you want to do that well look we all know what happens a zoning board provides an opportunity for a developer to make a lot of money and the temptation to do whatever it takes to get tenants out of buildings often occurs not always but very often I mean we haven't had tenants burnt out of an apartment recently but it's gone that far at times if you look at the opening sections of the New Jersey eviction laws which were provided in my appeal you will see that they go into great length to document exactly those problems okay they they state that the pressure for these things uh States quite clearly that that this is a problem so for the zoning board to give a developer the financial incentives to clear out a building which is what they must do under New Jersey state law or they cannot tear that building down or if they rebuild the build building they have to give these tenants apartments at their original rent controlled rent okay that doesn't happen very often so we need greater controls and conditions in the zoning ordinance there needs to be verification that the tenants voluntarily vacated the building I would suggest that the developer should be required to provide resources because many of these tenants are some of the most vulnerable people in the community they don't know their rights they don't have the money to hire a lawyer okay so somebody needs to provide those resources and since the developer is asking for changes to the law they should it should be incumbent upon them to provide the means to do that $225,000 a person as I suggest maybe that's high but the point is that the the tenant should be able to find somebody they can talk to to make sure any agreement that they make is legally binding and to know their rights which among other things are that this building uh they can only be evicted if this building is retired from residential use or if it is a health hazard safety hazard those are the only two reasons so the basic request is to instruct the zoning board to put those kind of robust Protections in there and if you really consider it as I mentioned in the appeal they have more robust Protections in the conditions of this zoning resolution to make sure that people observe the lighting requirements now I think that's a good thing to observe the lighting requirements but but compared to the requirements to protect people from harassment from being displaced from their homes I really think that should be beefed up quite a bit more I think those a reasonable request to make and I think the basic failure of this zoning um decision by the zoning board is a the the failure of the resolution it it will be shot down in court and B the failure to reflect on the fact that that there are public detriments that happen when you create situations that will cause tenants to be harassed out of their buildings and I would ask the city council as the the ultimate uh political body in the city the the body that passes the ordinances approves Master plans sets the tone for the intent and purpose of these things to instruct the zoning board that a displacing people or not making sure that they are only leaving voluntarily is a public detriment and B that the destruction of rental housing rent controlled housing is in fact a public detriment because it excludes a part of our po our population they can't live here anymore uh this would be the basic request I make now one or two other things that I promis to stop uh as quick as I can um there is a fair amount of disinformation that goes on at these zoning board hearings and what's very troubling is that when people in members of the public such as myself challenge them they are dismissed and disregarded okay I I I brought a couple one or two passages to illustrate this for example as you may have seen in my letter and is clear in the thing we were told when father santor called in from the uh Hearing in September that the um units in the building would be set to market value rents which which is it's one of those half truths well not really if they don't retire the building from residential use then they are legally obligated to give the tenants Apartments back at their rent controlled rents with some adjustments for improvements it's right there in the New Jersey eviction laws okay that was a piece of misinformation uh in his response um Jason uh claims a particular law I pulled them out okay uh both the planner and and Jason um site uh grubs versus sloth hour an interesting name for a lawsuit uh and their basic argument it says here um in other words the relevant assessment to be conducted by the board is not whether the site is particularly suited for the proposed use rather whether the site can accommodate any problems associated with the additional Des density okay good now I actually read these case law you know Google Scholar is a wonderful thing uh here's a section of the that particular case that they left out it says we concluded this is the appell court writing we concluded that a successful applicant for a far variance would still have to demonstrate special reasons for the grant of the variance the so-called positive criteria and that the variance would not cause and I emphasize this substantial detriment to the public good and would not substantially impair the intent and purpose of the Zone plan so the criteria presented by the planner is sort of a uh deception by Omission because they simply said that no it's a much lower standard no substantial detriment to the public good is is an issue one last example and then I will go uh in the opposition Mr Tel also uh states that the um I don't want to um lastly the very case that Mr ever cited to make his flawed points lastly the very case that Mr ever sites to make his flawed points which is NY s MSA LP via the board of adjustment of the township of wehawken 370 NJ super 319 a pellet division 2004 so having put that citation I'll start the sentence again uh lastly the very case that Mr ever cites to make his flawed points also makes clear that a board may only reject expert testimony upon Reliance of contrary expert testimony okay now I went through that case law too all right and this is the closest I could find to anything like that and you're welcome to correct me it also has this useful phrase in it because variances should be granted sparingly ly and with great caution which isn't what's going on at our zoning board at all because of variances should be granted sparingly and with great caution courts must be given greater deference give greater deference to a variance denial than to a grant my reason for reading it is the first part they should be granted sparingly we do not Grant variances sparingly in Hoboken by any means however what it what it goes on to say is while a board May reject expert testimony it may not do so so unreasonably based only upon bare allegations or unsubstantiated beliefs with regard to the expert testimony we specifically noted that no competing evidence expert or otherwise was presented by any interested party or the board to counter the applicants expert testimony now I don't see how you get what Mr tel said to there final Point regarding Miss naabi uh we keep hearing that the zoning board is a creature of the stat and can only do certain things and yet as I pointed out and to wrap this up um the the presumption of the zoning board is that it can instruct the developer uh as to its need to observe the as they call them anti- eviction laws if they presume that they have the authority to do that there is no reason that they can't presume to provide robust protections for tenants as a way of preventing what they are authorizing the new developer to do uh to be causing a substantial public detriment I thank you very [Applause] much so I'm I'm curious how you would respond and I hope I can articulate this so that you can understand it I know you're a smart guy but it's a a topic that we've heard um and it was expressed somewhat tangentially by Mr tuval in his his letter um but the notion If This Were if there were no variances If This Were an asri application so let's say 60% lack coverage only 11 units only uh everything was it was just a site plan approval which is frankly reasonably per funter mhm um we would still have the situation that the building would be raised and that the harm that you are expressing concern about justifiably about losing units losing rent control units Etc that would still be the case and it would have nothing to do with the variance it's just a question of whether a property owner is allowed under eviction law and under demolition permit requirements to take down a building I would argue that that is incorrect okay um I obviously understand what as of right means I've been before the zoning board myself okay I've been a zoning commissioner very unpleasant experience um I admire the people that put up with it but the answer to the question is simply this the New Jersey eviction laws apply to these particular provisions of them and I say this as a landlord of 25 years experience uh they apply to all units uh in the state of New Jersey except that special situation of buildings with three units or less where the landlord want the owner wants to occupy it for their own use or the use of a family member so no they would not have the opportunity to just raise the building until they get get the tenants out and in order to do that they would have to observe the New Jersey eviction La I don't think I the point here I'm making is not to interrupt you but to interrupt you is um what the zoning board is doing here uh first of all if they're applying as of right uh they're not asking for special variances to increase the value of the building and that means they're not getting special variances that increase the incentive to displace the tenants the fact that I think it is safe to say as somebody who owns investment property that I would not buy a building okay uh knowing that if I couldn't get the tenants out voluntarily I would um have to just keep it as is and knowing is if I built it as of right I'd wind up with five fewer units than I have right now okay that doesn't that that wouldn't be a rational economic decision but your key point is that building as of right isn't just limited to the zoning law in terms of the real world in which these buildings exist but I do think that yeah I think you're missing my point in that if yeah certainly this approval that the zoning board conferred did not in any way vitiate or or remove the applicability of the the landlord tenant laws of the state of New Jersey or anything else so if if these people foolish enough if the applicant is foolish enough to to go out spend the money to obtain this approval and obviously if they can't do something and one would hope legally to to remove the tenants then he has an approval that's sitting on a shelf and it'll be there and it's he just wasted his money can I can I um just before we go on I'm sorry just Corporation counsel it is seven I just want to know what's expected of us sure if you just want to let everyone that's here know that we're continuing a hearing it's up to you we can continue the hearing and everyone who's here for the regular counsil meeting can wait until the hearing is over or we could adjourn the hearing to another time no I I think so don't yeah I think we I think I mean I think we carry it I think there's a lot of questions and we have deliberation I think we'll go another half why don't we set a time that we're going to continue for um just to clarify for him I think if if there is an as of right if someone wanted to build as of right right here they'd go to the zoning officer the zoning officer would give a zoning certificate and go to the construction the building department here they get a zoning approval they take it back to and they get a zoning certificate and they go to the building department so both of these uh ends up with a zoning certificate with certain conditions going to the building department and then the building department is the one that like gives the approvals ultimately to demolish and allow them to build right however a number of the conditions that are placed on these resolutions quite correctly uh have to be met before they can get the first certificate 100% talking about as of right that's that's the key point I'm trying to make but there's no difference between there's no difference functionally between an as ofite building that gets a zoning certificate from our zoning officer for an AER right building and a uh a zoning certificate that is the product of a decision by the zoning board um the one that's the decision by the zoning board may have actually probably a lot of the same restrict the same requirements the flood mitigation Etc because our zoning officer will have contributed that Engineers Etc they know what our laws are um but there may be a few extras very specific to the variance um relief that was requested but in both both of those scenarios and I think this is the point that councilman doyo was trying to get to both of those still require this building to be fully emptied in order for them to build right and that is correct okay that is correct laws that protect well there are that protect my point is that we are altering the law in order to let this building have the density that gives the Builder the financial incentive to demolish it now councilman Doyle said hopefully they will do it according to the law or something to that effect all right the reality of what's going on here both in Hoboken in the state of New Jersey the state statutes on the eviction law document this is that the profit motive in the case of some landlords I'm a landlord I don't think of myself as evil but there are some really predatory people out there engag in all sorts of harassment of tenants they're not doing it as an act of Charity they're doing it for the profit motive okay they're doing it because they make more money this way that's the issue we've now given the developer an opportunity to make a lot more money but we are not providing conditions imposing conditions on them that will prevent that from being a detriment to the public good by making sure that they do in fact comply with the law which is why I am suggesting that the condition that you would instruct the zoning board to impose on the developer must be met before the first certificate of zoning compliance is issued I I'm going to go back to maybe something that you had said earlier which I think was a compelling point that you made which is often these zoning certificates or the the resolution of approvals that come out of the zoning um board process will list a bunch of very detailed requirements that may already be in our code or specif specific to the testimony um you know whether it's lighting whether it's Landscaping whether it's shade trees whether it's mirrors on the driveways you know Etc they'll be very specific so we go to all this spe specificity but what we just to just to have a nice tree in front but we're not going to a specificity saying that you need to comply with these provisions of the New Jersey state eviction law so that it's very clear precisely and and the key here is just saying I I think I'm just restating what you said yeah well precisely but the key thing I wanted to re restate it is and demonstrate that you have done so before you start sending tenants demolition notices and all the other things that go on okay the building department here is quite good that way if they don't get a first certificate of zoning compliance you're not getting any permits okay if we say you can't have a a first certificate of zoning compliance until you have demonstrated to us that say for example you have agree written agreements with all the ten that they're vacating voluntarily um I would argue that that would require making sure that the tenants made fully informed decisions and I mean this goes on I I haven't looked at everybody who's here tonight there's somebody from the building in this audience I corresponded with her by email she's afraid to speak at this meeting because she's afraid of what her landlord will do to her that's the reality of tenants faced with these kind of of development pressures and I think it's incumbent to avoid the public detriment to to impose conditions like this and and frankly if if the the council wants to pass an ordinance saying that site plan review also requires you know even for things that are built of right that they have to demonstrate this if these are occupied apartments that sounds like a great idea too it's just I'm just challenging this particular variance in fact I would suggest that the council consider making the demonstration that they have done those things they have gotten the tenants to agree to vacate they have provided them with resources so the making a fully informed decision I would suggest that you consider making that a in the future we can't do it for this uh application because you can't change the rules in the middle of the application that's against the law but I would suggest you consider making that a condition of completion for the application applications are not considered by the zoning board unless they're complete and there's a whole list of things you have to do to make it a complete one demonstrating that you have gotten the tenants out voluntarily should be one of them quite frankly excuse me council president sorry I believe that the zoning board attorney has to get going do you have anything else for her pardon oh Corporation counsel oh I'm sorry and you thought it was me because I believe nma has to leave do you have anything else for her do we oh you have to leave no anybody have questions for I mean not be or I not at the moment but I might yeah I know yeah I feel like we're best off scheduling a followup hearing so that we can ensure all the professions are still here we should have another meeting okay I'm sorry to do that to you not me but but you have now or do you have I'm just you have 10 minutes what time do you have to leave I don't know that we'd resolve this in 10 minutes yeah I think I mean I'm GNA I this is a tough this is tough and we're not I mean I was on the zoning board Jim's on the planning board but you know I've never been on a land never been these guys haven't been on so like I feel like I don't want to be personally I don't want to be artificially um you know rushed on this like I think we we learned a lot tonight we're going to take away of some questions I'd love to have another heing to kind of continue this so one question the applicant not the appellant has to consent to an extension if we're to do this otherwise you know the 95-day window if it closes the decision is affirmed I think ideally we would have all parties consent to the ex well I mean the statute says the applicant if everyone else is I assume you know the Mr ever if we said we want to deliberate further you would not object to that no certainly not yeah you want the yeah is going to we're very fancy because this is going to have an impact on yeah our process before the zoning Bel the zoning board and possibly before the planning board as well I think it's important to have a voice from uh from the from the board side of it yeah and I and I would say I know I'm going to have questions like we talked a lot about like I'm not sure we exactly know all of what we can is it an up or down is it amending the resolution is it remanding like I think there's a lot that we probably what is the timeline you mentioned there's a window of time that we we've extended it 95 days from January 5th I believe was the date so you know when we got to April and I do think if we if you're agreeable to it we should just set a date the next meeting do we want to how much notice is required I assume as same as a any other public meeting I don't know about that but I don't think it's yeah I mean as a public notice we can't do it within in the next two days and so forth but um right but does it make sense to schedule it as a fre standing meeting next week two weeks wait right because we're about to enter into the budget hearing process too which I just want to be cognizant of so I I wonder if we could schedule it as a freestanding hearing meeting that's what next week we wouldn't be pressed up against and then we're not rushing before counc we obviously want to work with the council we don't want to you know we're not going to not extend the time um so I guess two questions is a easily we can pick a date that's agreeable that's fine and then the other question is do you want us briefing any issue do you want us based on what's been provided do you want us to supplement the the the briefs that were provided I mean or do you want to just leave it the way that it is it's up I would leave it to you I mean I think we're doing it the way it is dictated so I don't think we need extraordinary cost for your client and so so the the the purpose of extending would just be to give the council more time to digest everything that's been done and ask question also ask questions and ask questions yeah okay no no I'm just I just want to make sure we're on the same page that's all the zoning board attorney's comfortable with us doing that without her here and that's fine I believe that we all want her here that's fine okay so do we plan to schedule this before the next council meeting um people can I question yes certainly jump in my theatrically trained voice instead of the microphone what we're saying is no pay just no more additional no more additional just wanted to Pi that was just a continuation if you want to have a demonstrative that's from the record oh here you gave this to me but I I don't think we're not asking for it okay good no okay so can we just ask people to provide schedules for next week maybe yeah are you right yeah let me just look really quick when the we can't just do it before the next council meeting okay we have the same issue if we do it as a hour councilman Doyle my my client is not available is not here next week so can we do it next week is not good for I believe for but then we run into the budget hearings which I believe are scheduled for the 15th and the 16th before the meeting on the 17 I'm sorry he just said he had no objection to he has no objection pushing it out so what about the week what about that's really pushing it but is the school vacation well then Passover starts the 22nd now may no May 1st I was going to say oh that week because we have budget hearing we have budget Workshops the week of 15 you don't want to do it just before our council meeting we're going have the same issue no we won't we're just asking our own questions you'll ask more than we do it at 5:00 before the meeting like if we gave ourselves two hours do we feel like that's a better approach yeah 18th I think if we have two hours it's fine oh April 18 do it on well they're away next week no that's April 18th does that work well what if we did it the 17th at 5:00 but if we did it at 5 and we did it from 5: to 7: I think five on the 17th is probably the way to go or 5:30 I know you have to I think it has to be five then Mr Evers is that okay with you what was it what was it if we did it five p.m on the 17th the next city council meeting at 5:00 17th yep 5 five 5 p.m 5 but that would give us two hours before the council meeting okay can all us make it just it'll have to be us so we don't need to worry about the rest but just us no I think they can are they able to read the transcript or they can't like Ruben could he read the whole transcript participate next time you're suppos Oh you mean to certify this the transcrip Reuben wantate at the next meeting wanted Alissa yeah I mean they let a low I would have to look into that yeah you guys don't have an objection to that yeah it's interesting because it's not it's not the typical L use meeting but I would assume that would be procedurally proper if he read the transcripts and certified that he looked at all the at the entirety of the record he he won't do we have to close this and re yep okay all right do we have to so there's there's no notice we're not carrying this you're just going to do another opma notice pursuant to the open public meetings act that this will be on on the 17th at 5:00 well the hearing will be considered carried no no I understand it will be re advertised R but it's not like a l us proceeding where you're okay you're just going to do the op's saying that we have a 95 Day Count thing so for some reason they consented no there's twoe it's okay there's two separate issues one is the city council's time to act which we've extended to that where so you don't have to worry about the default approval issue that's done the other is a planning or zoning board meeting where the applicant does a public notice that then's carried that was not done here because it's not it's not a hearing but you still have to advertise yes to make sure that the 5:00 meeting is properly noticed to the public you'll do two newspapers public okay okay that's all I wanted to make sure so we can do motion to close the hearing motion to close Public public meeting sorry meting second I okay thank you all right thank you gent we're gonna take