Mayor Dunleavy on Advisory Boards: Clearing up misconceptions

At the August 11, 2020 meeting of the Township council, ordinance 15-2020 was adopted, which modifies some provisions for Council’s advisory boards.

In the video below, Mayor Dunleavy provides the reasons for the changes and current state of the Council’s Advisory Board operations.

I want to thank the Mayor for spending the past two years, meeting with all Advisory Board chairs, Township staff and others to create this new framework, which will bring additional clarity and productivity to the boards and how public input shapes the decisions council makes.

Anyone interested in applying to serve on an Advisory (or Statutory*) Board may click here: Application for Township Boards
(* The ordinance above only applies to advisory boards, statutory boards are governed by State statue)

Do Not Disturb: How to read an ordinance

In the State of New Jersey, Municipal governments are given powers from the State legislature.  If we are not specifically given a power, we can’t legislate it.

Of course, the State can also yank back powers and if the State lege chooses to act differently than a municipality, the local ordinance is superseded and can no longer be enforced.  An example of this could be seen in Teaneck’s “hands free phone ordinance” or the “requirement for fences for certain above ground pools”.  No matter how wonderful the local population may find the rule, once the State acts in a specific area, the local rules fall.

The question recently came up about whether or not the local “noise” ordinance is enforceable here in Teaneck.

I think this is a good opportunity to share with the public how I look at questions like this, so you can see how the process works out.

First and foremost — what is the ordinance? Continue reading “Do Not Disturb: How to read an ordinance”

[UPDATE] Above Ground Pool Information [update #1]

As I mentioned in the previous post, many residents have requested information about above-ground pools in light of COVID-19 altering summer plans.

In the past few weeks, I had meetings with the manager, the zoning subcommittee, the building department supervisor and code officials.

Note that fence and setback requirements represent serious and potentially deadly safety issues.  While a permit is not required, you must comply with them.

Here’s the latest:

Temporary Pools (no standing water)

  • No permits will be required for temporary pools that will be emptied at the end of each day.

(However, they must still comply with regulations., including fence and setback requirements. — see below) Continue reading “[UPDATE] Above Ground Pool Information [update #1]”

Administrative Order 2020-15 [Libraries and more]

Good news for readers!  Administrative Order 2020-15 now allows for library book pickup (curbside).
The following is merely an excerpt of what is found in the order.  Please review the actual order below for all legal requirements.

Libraries:

  • All outdoor spaces may reopen
  • All municipal, County, State public libraries and all libraries at public and private colleges / universities are permitted to reopen (subject to requirements)
    • Curbside pickup / drop-off
    • Transactions handled in advance by phone / email
    • Employees will bring materials out
  • (read AO 2020-15 for complete list)

Continue reading “Administrative Order 2020-15 [Libraries and more]”

Executive Order 154: Personal Care Services

Below, are the new guidelines on the reopening of personal care services, which in general includes cosmetology shops, barber shops, beauty salons, hair braiding shops, nail salons, electrology facilities, certain spas, massage parlors, tanning salons, and tattoo parlors.

Effective at 6:00 a.m. on Monday, June 22, 2020, the following types of stores are permitted to reopen to the public provided that the facility complies with standards issues by the Dvisiion of Sonsumer Affaris and DOH, as laid out in the order:

  1. cosmetology shops
  2. barber shops
  3. beauty salons
  4. hair braiding shops
  5. nail salons
  6. electrology facilities
  7. spas, including day spas and medical spas, at which solely elective and cosmetic medical procedures are performed
  8. massage parlors
  9. tanning salons,
  10. and tattoo parlors

As always, please please read these carefully and reach out to the appropriate experts, with any questions.
Continue reading “Executive Order 154: Personal Care Services”

Above Ground Pool Information

Many residents have requested information about above-ground pools in light of COVID-19 altering summer plans.

I requested the Building Department and manager put together the information below.  Pools, taller than 24 inches require a zoning permit under our code.

If you have further questions, please feel free to reach out to the township. Continue reading “Above Ground Pool Information”

Executive Order 142: Non-Essential Services and Construction

Governor Murphy has issued Executive Order 142, which rolls back some of the previous measures that were put in place to halt the spread of COVID-19.

I’ve reviewed the order and compiled the list below.  This is not legal advice and I would strongly suggest anyone operating a business to review the rule in its entirety and seek legal guidance before changing any operations.

As the rate of infection decreases, the following changes take effect:

  1. Constructions projects not designated as essential may resume (subject to restrictions)
  2. Some vehicular based gatherings are permitted (subject to social distancing restrictions).
    1. Leaving your home to participate in such a gathering is no longer a violation of Executive Order.
  3. Certain Recreational and Entertainment events are now permitted (subject to social distancing restrictions).
  4. Non-essential retail businesses are permitted to reopen to the public, but only where they adopt specific policies as outlined in section 9.
    1. Curbside pickup only
    2. Limited employees required to effect curbside pickup
    3. Emphasis on contactless payments
    4. Arrangements for scheduling are encouraged
    5. Employees will place goods in vehicles
    6. Mall businesses can operate with curbside pickup (subject to social distancing restrictions)

The order tasks the State Director of Emergency Management with discretion to make additions, amendments, clarifications, exceptions, and exclusions to the terms in the order.

Municipalities are prohibited from any contrary rules.

Executive Order 142 Nonessential Contrcution Curbside Pickup Gatherings in Cars

Law is hard

When one starts to review laws, either on a local or state basis, the complexity factor is readily apparent.  There are many layers, tweaked over the decades (and sometimes centuries) which make legal counsel a requirement, even to understand what otherwise look like simple words.

Take this example:

“The commission shall consist of not less than five nor more than seven members, appointed by the mayor of the municipality…”

Source: NJSA 40:56A-1

Who does the appointing?

  1. The Mayor, Mohammed Hameeduddin
  2. The Council
  3. The Manager, Dean Kazinci

If you answered, the Mayor, you probably aren’t alone.  But you’d be wrong. Continue reading “Law is hard”

The Selective Call For Strict Enforcement

Yesterday, I deleted a posting that conflated a Board of Adjustment approving variances, with the act of spot zoning.  Sadly, this is common retort, sometimes from those that do not understand the nature of zoning rules and other times, from those trying to cast aspersions on the process.

Since it provided very little information and clouded the issue, I thought a post on the topic may make fore a better, more informed discussion.
(In the interest of transparency, you can see his post here)

Do variances ignore zoning?

The short answer is: No.  Variances don’t ignore zoning;  they are fundamentally an inextricable part of the system.

Want proof?  Let’s start in September of 1948, as additional land in the State Street area was starting to open for development.

Ordinance 878: An Ordinance Amending and Supplementing an Ordinance Entitled:

An Ordinance limiting and restricting to specified districts and regulating therein buildings and structures according to their construction and the volume and extend of their use; Regulating and restricting the height, number of stories and size of buildings and other structures, regulating and restricting the percentage of lot occupied, the size of yards, courts and other open spaces, the density of population; Regulating and Restricting the location, use, and extent of use of buildings and structures for trade, industry and other purposes; Establishing a Board of Adjustment; And Providing Penalties for the violation thereof. (emphasis added)

Notice that the establishment of a Board of Adjustment is part of the zoning ordinance?

That’s important to note.

In passing the zoning ordinance dealing with density, height and various other aspects, council knew that there were going to be times that a strict adherence would be against the property rights of some owners — and took measures to deal with that potentiality.

Dr. Haggerty thought the very fact that Council had established in this ordinance a Board of Adjustment indicated that they did not expect it would be perfect and problems could be brought before this Board. He noted that Teaneck has a reputation throughout the country as being a township of home owners. He felt this ordinance tended to “upgrade” certain sections of the Township.” (emphasis added)

Mayor Brett also stated that this ordinance was probably not perfect, but that it was a step in the right direction, that the Council were honestly trying to do the best thing for the Township as they see it, and if it does need revision, there is the Board of Adjustment and the Courts.” (emphasis added)
– Minutes of 9/7/48 on the passage of Ordinance 878

Role of the Zoning Board of Adjustment

The zoning board of adjustment was created by our zoning ordinance, as an independent quasi-judicial body.  The board hears evidence and decides, based on testimony, whether or not a requested variance is appropriate.  Most important to note is that when they decide, they are acting in accordance with the procedure that created the zoning laws.

There are many criticisms of applications before the board of adjustment and this post is not about the merits (or lack thereof) of any particular critique.

But there is no question, that the board of adjustment was created to deal with exceptions.
Nor is there a question that future exceptions were contemplated when the zoning laws were drafted.

“[T]he men and women who come Teaneck and build or buy their homes have created the value on this piece of land… and they are the ones who are entitled to consideration. He stated he did not know if he was in favor of the ordinance as it stands, but that he might want to see it changed somewhat. He believed there could be zones where exceptions to the stringent regulations could be accepted, and for that reason he would like to consider the ordinance more before he passed on it.” (emphasis added)
Councilman Milton Votee

“Councilman Votee agreed with Councilman Deissler that the home owner is the one who owns most of the land and should therefore be the one to be considered. He said he would vote for the ordinance tonight with the understanding exceptions can be made.” (emphasis added)
– Minutes from the hear of Ordinance 878

A Sordid History

When it comes to claims of strict enforcement of zoning, many times, advocates focus on specific zoning rules, ignoring the relief valves that were intentionally created by them.  One extreme example residents may remember occurred in the 70’s when opposition to a synagogue located in a residential zone grew to a fever pitch.

In 1974, when Beth Aaron was denied a variance for a synagogue on Queen Anne Road by the Board of Adjustment, the Court found they acted inappropriately.  The decision to appeal deadlocked 3-3, with one of the dissenting votes, Martin Cramer, stating, “the best reason not to appeal was that such a move could endanger the entire zoning code.”

A few years later, in 1979, when a Rinat Yisroel wanted to obtain a variance, some 200 letters came pouring in from residents, urging the Council to interfere with the variance process.  Residents insisted that the township “uphold[] the laws “which were written to protect my personal and property rights”, as per a statement from Mayor Hall.

The Mayor also went on in response:

“To begin with, the laws which were written to protect a citizen’s personal and property rights are the same laws that created the Board of Adjustment.  This statutory board has an obligation, among others, to determine whether strict observance of the zoning ordinance is unfairly depriving a property owner of the use of his property.

If the Council were to announce that it will not approve any variance for a house of worship on a sub-standard lot in a residential area, as this letter requests, then the Board of Adjustment could discontinue hearing any applications for such variances. The only problem is that the Council probably would end up as a defendant in a court case — charged with violating the very laws we are being called upon to uphold.” (emphasis added)
– Statement of Mayor Frank Hall on 5/22/79

There’s an old legal aphorism that goes, “If you have the facts on your side, pound the facts. If you have the law on your side, pound the law. If you have neither on your side, pound the table.”
When someone tells you that the Board of Adjustment isn’t respecting the zoning, they are pounding that table.
You can point out to them, that not only is the point of the board of adjustment to fix issues with the zoning law when appropriate — the law they want to stringently control the use of land is in fact the same law that created the board they are trying to ignore.

Interesting Land Use Decision in Englewood

In 431 E Palisade Avenue Real Estate, LLC, et al. v. City of Englewood, a Federal Judge just ruled that the city of Englewood is not permitted to enforce its zoning rules, because plaintiffs are likely to succeed on the merits at trial of showing that the City’s Zoning Ordinances violate the Fair Housing act, thereby rendering them unconstitutional.  The current zoning rules  do not permit assisted living and memory-care facilities in the regular residential zones (R-AAA), which plaintiffs claim is discriminatory. Continue reading “Interesting Land Use Decision in Englewood”