Developer Sues Teaneck For Not Permitting Off-Site Affordable Housing

The Township said only on-site affordable housing units.  The Developer agreed.

Then they sued to change the terms.

Developer promised affordable units in Teaneck but hasn’t built any, lawsuit says

As per the Bergen Record:

“Teaneck is facing another lawsuit regarding affordable housing after a developer failed to provide two affordable units agreed upon in the site plan, the Fair Share Housing Center alleges.”

The developer signed an agreement to build two affordable units on-site.  But when the Township wouldn’t let them renegotiate the agreement, they filed suit.

Back in May, attorney Gail Price filed a lawsuit for her client Red Realty against Teaneck and the head of our Building Department.  At issue was the denial of a temporary certificate of occupancy to the builder.

In short, the builder applied to the Zoning Board of Adjustment (“ZBOA”) for permission to build 19 apartments back in 2015/16.  Among the requirements set forth by the ZBOA, he had to:

  • Build 2 Affordable Apartments in addition to Market Rate units
  • Sign a developers agreement with the Township

The ZBOA grant of variance allowed for the affordable units to be built on or off site (the appeal pre-dated the ordinance requiring only on-site affordable housing units), but the developer’s agreement required only on-site and inclusionary affordable apartments.

  • “E. Affordable Housing. The Applicant shall be required to provide 2 affordable housing units either within the development. Or in the alternative, the Applicant may provide 2 units elsewhere in the Township. A contribution to a fund will not be considered an option or be permitted.”
  • “F (3): The within Approval is conditioned upon the Applicant entering into a Developer’s Agreement with the Township. The Developer’s Agreement shall contain the applicable conditions of this resolution.

Resolution of the ZBOA

  • 59. Affordable Housing UnitsThe Developer shall provide not less than 2 on-siteaffordable housing units in connection with the proposed development.  The Developer shall be required to comply with all legal requirements necessary to render the aforedescribed affordable housing units as affordable housing units to low and moderate income families as those terms are defined pursuant to the regulations established by the Council on Affordable Housing (COAI-l) or its successor and the Housing Affordability Controls regulations (N.J.A.C. 5:80-26 et seq.). The Applicant shall be required to take all actions necessary to insure that the unit is deemed to be an affordable housing unit acceptable to COAI-I, and shall be affirmatively marketed in compliance with the requirements of the Fair Housing Act. The units shall also be deed restricted in accordance with COAH regulations and only be rented or sold to an income qualified individual.
    Developer’s Agreement with Township

When the applicant asked for permission to do off-site affordable housing units, the Township emphatically said: No!

When asked if they could have a Temporary Certificate of Occupancy (“TCO”) to allow them to rent their market-rate units, the Township said: No!

So they sued.  And a Judge granted their papers, ordering the Teaneck building department to give them a TCO.  You can read the decision here.

But the case is not over

As per the complaint filed this week,

57. After Judge Farrington’s June 11, 2021 Order, counsel for the Township of Teaneck contacted counsel for Fair Share Housing Center.
58. Counsel for Teaneck informed FSHC of the action and what had transpired.
Complaint filed by Fair Share (available here)

Fair Share filed a letter in the existing litigation and sued on their own as well.

“FSHC is gravely concerned that if RREA receives its TCOs for all its market-rate units before it has provided any of the required affordable housing units, the affordable homes will never be built.”
Fair Share Housing Letter

Now, as per the Record:

“The center filed the suit Tuesday in Superior Court in Bergen County, naming not only the developer but also Teaneck and its Board of Adjustment. The attorneys for the township, the Board of Adjustment and Red Real Estate Associates were not immediately available for comment.”

Complaint available here

Stay tuned.

 

The End of Prohibition in Teaneck? [Part 1]

It seems that the end of prohibition may officially be on the horizon.  Once a never-ending war on the foul drugs of decadence, those in the temperance movement on the waning side of history.

What will the future be like in the USA, NJ, and Teaneck in particular once prohibition is finally over?

It’s unclear for sure, but we will track developments here. Continue reading “The End of Prohibition in Teaneck? [Part 1]”

Glenpointe Settlement Data

The Settlement with Glenpointe announced and approved by the Township includes:

  • 2007 through 2010 (part of litigation)
  • 2011 through 2019* (additional years not part of litigation)

The full amount the Township is refunding based on the litigation is: $1,711,869 + interest

The chart below indicates the refunds by year, which can also be found in Resolution 58-2021 on the Township’s website.

*  While not part of the litigation, years 2011-12 were subject to the “Freeze Act

 

Glenpointe Tax Appeal in the Rear-view Mirror

What is the Glenpointe Tax Appeal?

The Glenpointe complex, consisting of Hotels, Offices, Atriums, parking lots and more appealed the assessment of their taxes for the years 2007 through 20101.

Had the Glenpointe prevailed, the Township would have been responsible for refunding over $15 million dollars.

[Note: $15M figure does not take into account tax appeals for years 2011 through 2018, which are included in the settlement agreed to by the parties]

After the Superior Court found mostly for the Town, the appeals were ultimately settled for $8,083,000 (including interest).

From Judge Andresini:
(all quotes are fully explained below with relevant links to the opinion)

[T]he court rejects Plaintiff’s expert’s determination of stabilized revenue. Given that the Township’s expert’s stabilized ADR figures are in line with the actual ADR of the subject Hotel for the relevant tax years, did not overstate the effect of the economic downturn on those years, and are supported by the comparable data sets contained in the PKF trends he used, the court finds his stabilization of the subject Hotel’s revenues to be reliable and will adopt his conclusions of revenues accordingly.

Continue reading “Glenpointe Tax Appeal in the Rear-view Mirror”

Blue Teaneck Throwing Shade

On his page, local gadfly Bill Orr has a post about housing in Teaneck.

This is an important issue and worth taking a look at, in depth.

“Housing should be a basic human right for all not just those who are affluent. Increasingly such is not the case in Teaneck. With people moving from NYC and elsewhere to our town, it has brought us higher prices and done little to help those who cannot afford these costs.”

There are two ways to reduce housing costs.

  1. Create more housing
  2. Reduce the value of existing housing

What does Blue Teaneck suggest Teaneck do? Continue reading “Blue Teaneck Throwing Shade”

Hotel Tax Revenue Numbers

We just received the Hotel Tax revenue numbers from our CFO.

Hotel Occupancy Tax

The 2019 hotel tax revenue (excluding December) is $830,425.44.

This amount represents an approximately 29.4% increase over the final 2018 number of $641,689.32.  And will rise when December numbers are added into the mix.

Property Tax Increase

The prior parking lot in this space brought in a mere $18,819 in yearly tax revenue and is projected to grow to $1,600,000 in 2019.

Additional Revenue

The Township also realized approximately $381,000 in building permit fees.

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.

A Developing Story in Teaneck

I took this picture this morning at the corner of State Street and Teaneck Road.

In the foreground on the left is the pre-war apartments by Lozier Place.
On the right in the background is 1500 Teaneck Road.

Both appear very similar in height and other than the new materials, neither looks like a stark departure from what is already found in the area.

The 1500 Teaneck Road project (see schematics here) will add approximately $1,160,000 in taxes each year, with additional money going towards municipal open space.

It will also create 23 new affordable housing units (1-bedroom (4), 2-bedroom (14) and 3-bedroom (5).

It will also contain 435 parking spaces.

(additional info can be found here)

Of note is the previous condition of 1500 Teaneck Road.  Notice the numerous broken windows in the dilapidated structure that lined the neighborhood for years and years.

This is a wonderful addition to the community, will create foot traffic for our business districts and make Teaneck a more desirable place to live.

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”

Regional Symposium on Deer Management

Earlier this month, elected officials and mayors from the region met to discuss deer management at a regional symposium featuring wildlife biologists from the NJ Division of Fish and Wildlife.

Read: Englewood Deer Task Force Final Report 2019

Coverage of the event can be found here:
Deer Dilemma Forum: Lethal vs. Non-Lethal Options Discussed
Additional coverage: Pascack Press.

Here is a video of the presentation from last December and the slides from the 6/5/19 presentation can be found below. Continue reading “Regional Symposium on Deer Management”