PLANNING BOARD MEETING
BOROUGH OF WANAQUE
MINUTES
May 20, 2010
Regular Meeting
Meeting called to order by Chairman Gilbert Foulon with a salute to the flag at 8:04pm.ROLL CALL: Chairman Gilbert Foulon, Mayor Daniel Mahler, Councilman Dominick Cortellessa, Members Kevin Platt, Mark Reuter, William Rucci, John Shutte Eugene Verba and David Slater (arrived at 8:15pm).
PRESENT: Attorney Steven Veltri and Engineer Michael Cristaldi
ABSENT: Vice Chairman Joseph Graceffo
READING: Open Public Meeting Announcement
This is the Regular Meeting of the Wanaque Planning Board and adequate notice has been given and it has been duly advertised by the placement of a notice in the Suburban Trends and the Herald News on January 31, 2010 and a notice thereof has been posted on the bulletin board in the Municipal Building in the Borough of Wanaque and a copy thereof has been on file with the Borough Clerk.
MINUTES: from the April 15, 2010 Meeting.
MOTION TO APPROVE: made by Member Reuter, seconded by Councilman Cortellessa. Voting yes were Chairman Foulon, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte and Verba. Mayor Mahler abstained.
COMMUNICATIONS REPORT: No questions asked.
APPLICATION STATUS REPORT: Engineer Cristaldi reported that there are two pending applications. His report on both applications, along with the applications, were handed out to the Board Members.1. Cell Tower – Recommending that this application be deemed complete and should be put on the agenda to be heard.
The Applicant did submit an FCC Radio Frequency Compliant Assessment
Report, which is submitted with all cell tower applications; however, I generally don’t review those. This would deal with the radio frequencies and/or amount of energy that is being transmitted out and around the tower. If the Board feels it necessary, they may want to get an expert in this area especially since the cell tower is going on school property.Attorney Veltri requested Engineer Cristaldi obtain names and possible quotes from experts for review of any plans and reports and the possible appearance before the Board. We should have this information available at the hearing in the event this Board, after hearing testimony, feels it necessary to have its own expert in this area. At that time, we would be able to let the applicant know the costs and discuss the issue.
2. 23 Unit Residential Building on the Rhinesmith Property – This application is not complete. They did complete the Checklist, but there were some items that they did not include. One of those items was a traffic study. Even though they put it under “waive”, they are going to have to submit it to the County so we should have a copy. The traffic study should address the movement of trucks in the back of the site. We should also have a drainage study, information for emergency personnel and vehicles to get into the development and all the other items contained in my report. My recommendation is that the Board does not deem this application complete. The applicant also did not send any fees, however, the Board Secretary advised a letter did go out requesting fees.
CHAIRMAN FOULON ENTERED A MOTION TO DEEM THE CELL TOWER APPLICATION COMPLETE AND SCHEDULE A PUBLIC HEARING DATE FOR NEXT MONTH AND DEEMING THE RHINESMITH PROPERTY APPLICATION INCOMPLETE
MOTION TO APPROVE: made by Member Rucci, seconded by Member Platt. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte and Verba.
NEW BUSINESS APPLICATION: Community Auto Center.
550 Ringwood Avenue, Block 233, Lot 1.01
Owner of Property is Thomas Palkow, 1 Melrose Avenue, Wanaque, NJ
Owner of Business is Cheryl Rinbrand, 28 Warren Place, Glen Rock, NJ
Cheryl Rinbrand advised she will be operating a repair facility at this location. Per inspection reports, a hot water heater needs to be installed and fire extinguishers.
Demetrio Marro also spoke. He will be doing most of the work at the facility with one other technician. They will keep the property neat.MOTION TO APPROVE SUBJECT TO SATISFACTORY REINSPECTIONS: made by Member Rucci, seconded by Member Shutte. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte, Verba and Slater.
COAH HOUSING / FAIR SHARE ELEMENT FOR MUNICIPAL MASTER PLAN
Richard Scalia of Bernard & Nebenzahl; Art Bernard of Bernard & Nebenzahl, Lambertville, NJ; and Robert Benecke of Benecke Economics, Moonachie, NJ
were sworn in by Attorney Veltri
Robert Tessier of Dykstra Associates (arrived at 8:35pm and was sworn in at 9:35pm)Robert Benecke of Benecke Economics:
Explained that this meeting involved the Highlands Element of Wanaque’s Master Plan and the other matter related to that is the COAH Element and Fair Share Housing Plan.The Board’s adoption of the Re-examination of the Master Plan cemented the Borough’s compliance with the Municipal Land Use Law and provided the various statutory criteria, including the review of the local objectives of zoning and land use. We have three issues that run very strong in this area – redevelopment, compliance with affordable housing and Mount Laurel.
The Borough has been very active in redevelopment and has produced the Haskell Town Center project and has projected future redevelopment at the U.S. Aluminum and Rhinesmith Properties. The Highlands Act presents challenges as to where to designate development and redevelopment in the Borough. This has to be done in the Haskell Town Center and the to be designated, Midvale Town Center. This is important because the Borough has to comply with affordable housing rules and regulations resulting from exclusionary zoning lawsuits that are generally referred to as Mount Laurel I, II and III. The last of which is the important lawsuit, Mount Laurel III, of 1986. A town in New Jersey, especially one that has a town center and has targeted development and re-development must have an inclusionary zoning element otherwise its zoning may be subject to challenge and may be overturned. If you do not have an affordable housing element and inclusionary zoning, there will be problems because, even if COAH is eliminated, there will be some other “form” required to be implemented for inclusionary zoning to be effectuated in each and every one of the 566 municipalities in New Jersey. This is amplified in Wanaque because of the town center designation in a Highlands area. With the Borough’s town center designation, an affordable housing element is necessary to obtain any grants that may be available from the State and to keep the town center designation.
Art Bernard of Bernard and Nebenzahl, LLC:
I am a Licensed Professional Planner with 35 years of experience in housing and land use planning. I worked on the Borough’s 2006 Affordable Housing Plan.Whether COAH stays or not, the Supreme Court has determined, on at least three different occasions, that each New Jersey municipality has a constitutional obligation to provide realistic opportunity for low and moderate income housing opportunities. We are talking about working people who just don’t make as much as others. A household of two, in this area of the state, can earn as much as $51,500 to qualify for affordable housing. A household of three can earn a little bit more than $58,000 and still qualify for affordable housing.
The affordable housing obligation has been around since 1975. In 1983, the Court determined that in order to enforce it, it was necessary to come up with this idea called a builders’ remedy. The builders’ remedy is where a developer, if he shows a town hasn’t complied with an affordable housing obligation, can basically toss your ordinance out and get relief on his property to build a lot of units provided that at least 20% of them are for low and moderate income households. After the 1983 builders’ remedy, the legislature in 1985 responded with the Fair Housing Act and created COAH as an administrative entity to administer this housing obligation. The way the Fair Housing Act has worked over the last twenty plus years is if a town files a plan with COAH for its review, then it’s protected from builders’ remedy suit. If someone sues you after you have filed a plan with COAH, the case is transferred to COAH. The plan is reviewed and, if COAH is satisfied with the plan, the developer gets nothing, unless you work something out with the developer. The motivation for most of the towns to go to COAH has been to get protection from the builders’ remedy suits. I believe, no matter what you have heard, if COAH gets dissolved, it will not get rid of the constitutional housing obligations, and we don’t know how the legislature is going to amend the Fair Housing Act. While this issue is being sorted out, in order for the Borough to be protected, the Board needs to adopt a Housing Element.
Chairman Foulon asked, “What is affordable housing?” He has been on this Board for twenty-five years and we’ve been discussing this for all those years. Mr. Bernard responded that we discussed the income limits for a family to qualify for low and moderate income housing. It is what a household could afford based on 5% down payment with a thirty year mortgage, no points and Deed restricted. It is Deed restricted to ensure the index of the price of the housing over time and it makes sure that people who are income qualified get it. In this area, it ranges from $70,000 to $170,000. Mr. Benecke advised that $121,000 is the average for this area of New Jersey. Mr. Bernard also advised that 350 of the communities in New Jersey have either voluntarily or involuntarily met their housing obligations by going through COAH or being sued.
Member Rucci asked if builders’ remedy could push us past our sewer capacity because we are pretty much stretched at our limits right now. Mr. Bernard advised that it would probably define the limits of the builders’ remedy, and it is not that big of a threat because we have very limited land available.
There was a problem in the late nineties between the Borough and COAH. COAH allocated Wanaque a housing obligation of 332 units. The statute recognizes that there might not be enough land for 332 units, their rules recognize it and they both call for a vacant land adjustment and you go through a process of figuring the capacity of all your vacant land to come up with this term “a realistic development potential”. How much housing can we create with the vacant land in the community? The community is suppose to try to address the remainder of the housing obligation by capturing development fees and by providing overlay zones on developed properties to create a stimulus to provide affordable housing. Wanaque did do this process in a fairly orderly fashion and COAH determined, at that time, that Wanaque had a realistic development potential of 98 units and Wanaque did a plan for 98 units. The 98 units was predicated on Powder Hollow being zoned at six units per acre. Powder Hollow was not zoned for that, it was zoned at a much higher density and COAH decided that it was going to change the realistic development potential based on the zoning that Powder Hollow actually got and increased the realistic development potential from 98 to 275 units. That would have been fine if Powder Hollow was still available to produce the housing, but it wasn’t. It had already received its approvals. COAH decided the Borough would make up the difference in its next plan, even though the vacant land was no longer available. Clearly, there is no more land now than there was then and the land you have has more restraints on it because of Highlands.
COAH, by law, is obligated to come up with a housing obligation beyond 1999. They came up with a 1999 – 2018 housing obligation, along with the Highlands, that results in the Borough having an additional housing obligation of 131 units. This is based largely on growth that already has taken place since 2004. COAH’s growth share approach requires the community to accept one affordable unit for every five units that have actually been built; and one affordable unit for every sixteen jobs. There was a lot of residential development that actually occurred since 2004 and so that 131 units is primarily based upon growth that actually occurred and COAH will not adjust that number downward. Again, the Borough’s obligation is based on land that is not available.
Because of this, we have taken the position that COAH should waive its rules. Based upon our research, we have determined that the realistic development potential should not be 275, or 98, but should be 46, and we have developed a plan for the 46 units. We looked at the 131 units that COAH assigned you after 1999 and found that the Borough has created some housing opportunities and we have tried to maximize the credit for them. In trying to address the 131 units, we explored the possibility of the Borough actually building its own housing on Block 430, Lot 1; a 4.9 acre site on Ringwood Avenue, (the “Antille” property), which was a part of the 2006 Plan for the Borough to actually go into the housing business with a tax credit developer and build fifty affordable units on that site.
The feedback we have gotten from the Borough is that option is no longer acceptable. Firstly, under COAH rules, if you don’t get the tax credits, the town is on the hook to finance the development and the town is not willing to accept that responsibility. Secondly, the town is reluctant to isolate all that affordable housing in one place. We were told it was okay to zone the site as long as 20% of the units were affordable, not 100%. The Fair Housing Act is clear as to what municipalities are required to do. A municipality can be required to zone land, spend development fees, but it cannot be required to spend its own money on affordable housing. COAH does not have the power to make the Borough get into the housing business and build the housing on that site or any other site.
All Board Members were given a handout entitled “Summary of Housing Element”, which Mr. Bernard reviewed along with page 49 of the Housing Element and Fair Share Plan.
Because Wanaque submitted a plan to COAH in 2006, the Borough gets double credit for the developments in that plan (Powder Hollow/Candle Factory/Doty Road/Antille Property). With these developments, the Borough could get 69 credits toward the 131 unit-housing obligation and maybe an additional two if the RSK development receives its waivers. Wanaque is still about 62 units short of addressing the 131 units Third Round Housing Element, and may be short on rental obligations.The Housing Element and Fair Share Plan, as prepared, tries to show COAH that its decision to increase the realistic development potential based on the Powder Hollow site, which is not available any more, and to create a housing obligation based on development that has already taken place, has broken the link between vacant land and the housing obligation. We tried to show COAH it has created a situation in which it is imposing a housing obligation based on land that has already been developed and created a housing obligation with no place to put it. We tried to create a common sense solution to the problem based on the land that is available in the Borough, the constraints imposed by the Highlands Council and the fact that the Fair Housing Act does not require the Borough to spend its own money on affordable housing.
Councilman Cortellessa asked what was realistic development potential. Mr. Bernard advised that the idea behind COAH’s realistic development potential is to identify the vacant sites, which are more realistic than previously developed sites, to create affordable housing, and they wanted the more realistic sites first.
Mr. Benecke further advised that there is also a housing obligation arising from non-residential development. If you build a store, it still creates a COAH obligation. When the Haskell Town Center was built, there is a resulting COAH obligation because of the number of jobs created and each type of business would have a different obligation number.
Member Reuter questioned the calculations and if we were really asking COAH to change the numbers from 332 to 46 and 131 to 70. Mr. Bernard agreed. Also, Member Reuter was under the impression that there was a committee that was going to discuss this issue in advance of this meeting and asked if there was a report. Mayor Mahler advised that the committee met with Mr. Bernard and the major issue discussed was the 50 low-income units in the middle of Haskell on Ringwood Avenue. Also discussed were three overlay zones. Chairman Foulon advised that the Plan before the Board is the result of the committee meeting. This Plan is basically the same plan that was approved and filed in 2006 with the exception of the Antille property and the overlay zones, and that the Borough does not want to go into the housing business.
Robert Tessier, Planning Director, Dykstra Associates
I am working on other Highlands Element and Master Plan Elements. If you are going to move forward with the Highlands and the preservation area and the planning area, one of the requirements is that the community either adopt a COAH Plan or go to court because COAH is being unreasonable. We have to have this as part of the process if we want to get the Highlands Town Center Designation and the Highlands Redevelopment Area.CHAIRMAN FOULON ENTERTAINED A MOTION TO OPEN THE HEARING ON THE HOUSING ELEMENT AND FAIR SHARE PLAN (COAH) TO THE PUBLIC: made by Member Reuter, seconded by Councilman Cortellessa. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte, Verba and Slater.
John Maiello, 26 Rhinesmith Avenue, Wanaque
Mr. Maiello questioned the relationship between affordable housing and commercial property. Mr. Benecke advised that the development growth calculation does produce an obligation to provide housing. If you build a commercial piece of property, it generates a growth share obligation to provide affordable homes. An example would be for every 16 jobs a municipality creates, you need one affordable unit. Mr. Bernard advised that this was not an issue for Wanaque’s Plan.
Mr. Maiello asked about the U.S. Aluminum property that if it is developed commercially, it is going to produce so many jobs and we are going to have to make so many affordable homes. Mr. Benecke advised that there is a pre-existing use in place for that property that had pre-existing numbers, which would have to be balanced.
Mr. Bernard advised Wanaque paid Hoboken to build 24 units sometime in the 1990’s. Developers in affluent towns used to be able to sell their affordable housing units, but it is not the case anymore.
Mr. Maiello asked about affordable rentals. Mr. Bernard advised that low cost housing rentals are approximately $700. When a developer builds rental units, it is only 15% of the total units that would have to be affordable.Grace Maiello, 26 Rhinesmith Avenue, Wanaque
Mrs. Maiello requested copies of the documents that were being discussed be handed out.CHAIRMAN FOULON ENTERTAINED A MOTION TO CLOSE THE PUBLIC HEARING ON THE COAH PORTION: made by Member Reuter, seconded by Mayor Mahler. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte, Verba and Slater.
Robert Tessier – Highlands Element
Part of the Plan Conformance with the Highlands is to do the Highlands Element for the Master Plan to make Wanaque in conformance with Highlands, which is optional in the planning area and mandatory in the preservation area. The important thing we have asked for in the Plan is to modify/change what the Highlands designations are in the land use capability zone. Highlands assumed that Wanaque was in a lake community because of the reservoir so the properties below the reservoir were put into a preservation category. All that property is developed and isn’t a lake community. We already met with Eileen Swan and the staff at the Highlands Council and discussed the issue of removing these properties from preservation and being added to the existing community (refer to map after page 15). The other important item is the map after page 23 where we show the redevelopment areas and the town center. The Highlands staff has reviewed these requests and on May 11th a letter was sent to the Mayor advising they were excited about pursuing this Highland Center Designation and requested more details on the redevelopment work, and the work previously done with the State Planning Commission about the center designation. We do have all the information they are requesting. Moving forward with the Highlands Element says the Borough wants to seek plan conformance in the planning area and preservation area, seek the Highlands Town Center Designation and seek these areas as Highlands redevelopment areas. This is the fifth step in a seven step process towards Plan Conformance. After this is a review of the zoning ordinances and the last step is actually a Petition seeking Plan Conformance. A Resolution of Intent has been sent, but there are additional items to do. There will be an eighth step, which is the continuing effort that the Highlands will have to do to actually do the town center designation and to accept the redevelopment areas.CHAIRMAN FOULON ENTERTAINED A MOTION TO OPEN THE HEARING ON THE HIGHLANDS ELEMENT TO THE PUBLIC: made by Member Slater, seconded by Councilman Cortellessa. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte, Verba and Slater.
John Maiello, 26 Rhinesmith Avenue, Wanaque
Mr. Maiello commended the Board on this issue. The Maiellos own a piece of property that abuts the reservoir, which was a swimming business years ago. It is in an R10 Zone, but when the Highlands Act passed, we were unable to sell it. Because you are doing this process, there may be a way we can develop it or find out a way to sell it.Grace Maiello, 26 Rhinesmith Avenue, Wanaque
Mrs. Maiello asked Mr. Tessier about the four pieces of property they own, which fall within the preservation areas and redevelopment areas. If all these things go before the Highlands Council, how would the properties be affected for development? Mr. Tessier advised, without speaking about specific properties, that we cannot change what the planning area is and what the preservation area is because those boundaries were set up by the State Legislature and a Statute and that says “here’s what they are.” Only an act of the legislature and a signature of the governor can do that. Within those designations, they have set up zones and all the properties in the lake preservation zone we are asking them to change to existing community.CHAIRMAN FOULON ENTERTAINED A MOTION TO CLOSE THE PUBLIC HEARING ON THE HIGHLANDS PRESERVATION ACT: made by Member Slater, seconded by Member Platt. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte, Verba and Slater.
CHAIRMAN FOULON ENTERTAINED A MOTION TO ADOPT THE HOUSING ELEMENT AND FAIR SHARE PLAN (COAH): made by Councilman Cortellessa, seconded by Member Verba. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Shutte and Verba. Voting no were Members Rucci and Slater. Motion is Carried.
CHAIRMAN FOULON ENTERTAINED A MOTION TO ADOPT THE HIGHLANDS ELEMENT: made by Member Reuter, seconded by Councilman Cortellessa. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte, Verba and Slater. Motion is Carried.
CHAIRMAN FOULON ENTERTAINED A MOTION TO APPROVE THE RESOLUTION ON THE HOUSING ELEMENT AND FAIR SHARE PLAN: made by Member Platt, seconded by Member Verba. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Shutte, Verba and Slater. Voting no was Member Rucci. Motion is Carried.
Attorney Veltri read the Resolution into the record and asked the Chairman to sign the Resolution subject to his review and possible changing of a few words.
PUBLIC DISCUSSION: John Maiello, 26 Rhinesmith Avenue, Wanaque
Mr. Maiello agrees with the Board 100% on passing this COAH Plan, especially since the Board has no choice. He objections to the way it has been operating over the years and putting unfair burdens on a small town like ours.
RESOLUTIONS: None
VOUCHERS: submitted by Richard Alaimo Engineering for meeting attendance in the amount of $190.
MOTION TO APPROVE: made by Member Slater, seconded by Rucci. Voting yes were Chairman Foulon, Mayor Mahler, Councilman Cortellessa, Members Platt, Reuter, Rucci, Shutte, Verba and Slater.
MOTION TO ADJOURN AT 10:10 P.M.: made by Member Slater, seconded by Member Rucci. Carried by a voice vote.
______________________________
Jennifer A. Fiorito
Planning Board Secretary