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SAVING VILLA MARIA

Status Report – September 2008

Villa Maria Fact Sheet: Last updated 9/22/08

Related Fact Sheets – Flooding, Environmental Issues, Master Plans

Table of Contents:

3 / General Facts
5 / Zoning
10 / Property Taxation
12 / Ecology
12 / DEP - Bureau of Land Use Regulation (includes Stormwater Regulation)
14 / DEP – Dam Safety and Flood Control – National Flood Insurance Program
14 / DEP – Green Acres Program - Open Space Deficit
15 / DEP Public Hearings
15 / Possible Endangered Species
16 / DEP – Hazardous Waste
16 / Other Relevant Public Agencies
17 / Other Relevant Private Agencies
18 / Historic Preservation
21 / Key Local Boards, Commissions and Officials
23 / Applicable Local Ordinances and State Statutes
24 / Community Impact
26 / Self-Governance Ordinance
27 / Local Self-Governance & Preemptive Municipal Gag Orders
29 / Access to Public Records
30 / Source Documents
30 / Miscellaneous - Permit Extension Act
31 / Contact Information

GENERAL FACTS

  • Site Location – “Villa Maria,” Block 110 Lot 2, North Plainfield, Somerset County, NJ. Address – 641 Somerset Street. Borders municipalities Watchung and Green Brook. Falls within Metropolitan Planning Area 1 (“Areas for Growth”) in the NJ Division of Community Affairs Office of Smart Growth NJ State Development and Redevelopment Plan.
  • Ownership - Prior owner – Congregation of the Servants of the Holy Child Jesus of the Third Order. Current owner/developer - Robert McNerney, CEO of Watchung Hills at North Plainfield, LLC. Owner as of 3/31/08; purchase price $3.93 million. Address PO Box 67, Glen Rock, NJ 07452
  • Size – Approximately 17-acre property, heavily wooded in portions, home to Landmark Eastern White Pine, includes banks of Stony Brook.
  • Geography & Topography – The parcel has a 30% slope; erosion could cause considerable damage to the surrounding brook and downstream areas. Stony Brook runs through part of the site, and feeds the Green Brook, which floods many North Plainfield properties; North Plainfield has a very flat topographical profile. 1974 Master Plan emphasized this flooding fact (exacerbated by overdevelopment upstream and within the Borough) and called for the Borough to purchase developed land in flood plains and return the land to its natural state with plantings, etc. The parcel is part of the Watchung Mountain fault zone.
  • Flood Zone – The area is part of the Raritan River watershed and the Green Brook Flood Control Project area. Green Brook Flood Control Commission notified of the situation verbally and in writing Summer 2008. As of Sept. 2008, no response. FEMA (Federal Emergency Management Agency) Status - Half of North Plainfield is in a flood zone. Recently, the FEMA maps changed (expanded) due to intensified runoff from Watching Square Shopping Mall. All the building requirements for the mall were met, yet the FEMA maps changed drastically and many homes have been affected by flooding. A North Plainfield resident in the flood plain recently had his flood insurance rates double in cost due to this change. As of Sept. 2008, further resident investigations ongoing.
  • Ecology/Biology - The parcel has about 500 large, mature trees with deep roots, some up to two centuries old. The parcel is the site of a state Champion Eastern White Pine (Pinus Strobus) The North Plainfield Shade Tree Advisory Board has information about other unique types of trees on that property e.g Bristlecone Pine (Pinus Aristata) and has done a cursory inventory of the plantings and native trees. Those trees help absorb stormwater and help prevent the brook from overflowing. [See below for more detail.]
  • Borough Demographics – The parcel is the last parcel of open space in small, densely-populated borough, three square miles inhabited by more than 7,000 people per square mile. Rush hour commuter traffic on nearby Interhaven Avenue, Somerset Street and Watchung Avenue is heavy. School system is at or near capacity. Volunteer rescue squad is chronically underfunded and overstretched. Police enforcement of traffic laws and zoning enforcement of property maintenance, litter laws is lax.
  • Tax Status – Property was tax-exempt through January 2007, although charitable activity ceased in 2001/2002. Clarifying documentation sought, not yet obtained. [See below for more detail.]
  • McNerney’s development plans – Build 225 age-restricted condo (ARC) units (Planning Board approved this plan in August 2007. Trial court invalidated ARC ordinance Sept. 2007. Borough appealed trial court decision on behalf of developer. Appeal currently pending in NJ Appellate Division)…OR… Build up to 55 single family homes under regular R-2 zoning, current application before Planning Board, first hearing to be held Sept. 10 2008, second hearing to be held Sept. 24, 2008.

Antoinette Rinehart reported (Summer 2008):

[At] Borough Hall, I viewed the new application of Watchung Hills at North Plainfield. As best I can tell, they have designed 48 single-family stand-alone, 2-1/2 story homes; each containing three bedrooms, an office (could be used as another bedroom), two baths, one half-bath. Livable space averages 2,800 ft. on lots 50 ft. wide (depth varies) with a 30 ft. "front yard". All these positioned on a "horseshoe drive" entrancing and exiting onto Interhaven Avenue. No indication if these are pre-fabs but I would make a guess. On the corner of Wilson and Ridge Avenues there are two prefabs that have been built since March 2008 and are described pretty much per the proposed home plan submitted by Watchung Hills…on the market for $439,000 and $489,000 respectively. I anticipate the houses on the Villa site will be similar and priced much the same.

  • Public’s Interest - More than 600 people in North Plainfield do not want to see that property built on, are concerned about negative environmental, flood, school, tax, quality of life and traffic impacts, and believe this property should remain untouched or buildings should be renovated on interior for residential or commercial use. (Summer 2007 petition signatories).
  • Eminent Domain – New Jersey law recognizes public right of eminent domain to preserve open space, limit school overcrowding, pollution and traffic congestion, all of which apply to North Plainfield and Villa Maria: Open space (Mount Laurel v. MiPro Homes, L.L.C., 379 NJ Super 359 (App Div 2005).

ZONING

  • 1938/1939 – German nuns affiliated with the Franciscan Servants of the Holy Child Jesus purchase 17-acre property for $18,000. As religious organization, they paid no taxes for entire period of use as residential nursing facility (1938-2002) and thereafter (2003-2008).
  • 2002 – Villa Maria nursing home closed. Zoning at the time R-2 single-family residential development.
  • April 2003 - Borough commissioned two appraisals of the property (assessed at $6,119,000). Dickenson & McCormick peg value at $4,250,000. FJB Co. Inc. pegs value at $7,950,000. Neither appraisal firm was granted access to interior of buildings. Findings/documents not made available to public until Summer/Fall 2007.
  • May/June 2003 – Councilwoman Heather DeGeorge proposed that Borough Council add age-restriction to single-family zoning for parcel.
  • Sept. 2003 – Attorneys for Villa Maria nuns draft ordinance to convert zoning from R-2 single family residential (permitting 75 to 80 homes) to R-2/high-density, permitting up to 360 age restricted condominiums on properties at least 12 acres in size. Villa Maria is the only parcel in town that large and the last remaining parcel of open space. Residents argue town should buy the land for open space. Town Council members say “the property was never for sale to the borough.” The proposed ordinance fails to pass. Documents related to these legal negotiations for drafting of ordinance sought via OPRA May – Sept. 2007. Requests denied. Government Records Council appeal filed. As of Sept. 2008, decision pending.
  • May 2, 2005 – Rezoning issue brought up again, with a proposal to change all areas in the borough zoned residential R-2 to R-2/age restricted, allowing age-restricted housing to be built on tracts of at least 12 acres, including about 250 units at Villa Maria. (“Spot zoning” in developers’ favor, since Villa Maria is the only parcel that size.) Public hearing attended by 150-200 residents, mostly opposed to development. Borough Attorney Eric Bernstein seen conducting private meeting in the hall with Villa Maria developer counsel. Hearing & vote then postponed due to inadequate notice to Green Brook residents.
  • May 8, 2005 – Resident Antoinette Rinehart reports rumor that developers offered $14-$17 million for the site.
  • May 18, 2005 – Paul. S. Kueter (Green Brook resident within 200’ of proposed development) sends letter to Courier-News, refers to Villa Maria as “an enclave of repose and grace in a town not noted for such attributes” and highlights a 1974 project by Summit citizens to preserve 12.5 acres there, now known as the Arboretum.
  • July 18, 2005 – Courier-News article on overall plans for town, including Villa Maria, reports that owners have been denied rezoning, notes resident desire that it be open space. Open space “not feasible,” according to Mayor Janice Allen. Council Chair Nathan Rudy notes that the nuns insist on working only with Town & Country Developers of Woodcliff Lake, C.E.O. James J. Bovino.
  • Oct. 8, 2005 – Courier-News announces a public hearing Oct. 17 at West End Elementary School where officials will discuss the latest rezoning plan for the 17-acre senior-care center site. Article reports the zoning plan is the third in recent years, and would create a new R-9 zoning designation to permit construction of up to 285 age-restricted residential units on the site. Even supporters of the zoning change seem reluctant, describing it as the best option available to limit schoolchildren, traffic, ecological damage, since nuns do not want to help the town use the land for open space or community purposes. Opponents continue to argue that impact studies for traffic and flooding have been inadequate, and see no reason for the town to change ordinances to benefit the nun’s profit margin.
  • Oct. 17, 2005 – Proposed R-9 zoning change fails at Borough Council. More than 100 residents attend; all but one speaker express either disbelief or anger about the zoning change. After the vote, opponents of development are hopeful that vote will spur exploration of open space option. Supporters of the ordinance are worried about uncontrolled single-family development, adding 140-160 children to the school rosters, and argue that the age-restricted condo community could bring nearly $1 million in tax revenue. The vote on the six-member council (reduced from usual seven members by a resignation) was 4-2, and because of a technical quirk requiring a two-thirds majority, the plan fell short by one vote.
  • Oct. 21, 2005 - Courier-News reports the 4-2 vote on the Borough Council may have been a 2/3 majority or “yes” vote after all. Matthew O’Donnell, attorney for the Servants of the Holy Child Jesus, states that if the measure failed, he would take the matter to court. Borough Attorney Eric Bernstein says issue is “open” and four votes may have been sufficient, even though there are two unusual factors at play. A state land-use law requires that when at least 20 percent of the people who own property within 200 feet of an area to be rezoned oppose the change, a two-thirds majority is needed for approval. A resident petition was presented to the borough Monday morning, and officials were checking to see whether it had the required number of valid signatures. The second issue is what constitutes a two-thirds majority on a seven-member council with only six members due to a vacancy. Several people, including Republican Council Member Margaret Mary Jones, have suggested that the value of the land is less than $1 million, putting it within reach of a public purchase. But O’Donnell said the property was appraised at $8 million to $10 million several years ago, and is worth even more today.
  • Nov. 14, 2005 – Borough Council accepts the opinion of Borough Attorney Eric Bernstein that the 4-2 vote constituted a 2/3 majority sufficient to override a valid citizens’ petition against the zoning change, and that the zoning ordinance had therefore passed October 17.
  • Jan. 9, 2006 - Borough Council forced to table a proposal to scale back potential development to a maximum of 225 units, when officials from neighboring Green Brook point out they haven’t been properly notified of the plan because of a clerical error- they were sent copies of the earlier zoning ordinance. About 60 residents attend this public hearing, again, mostly opposed to development. Bill Campbell, a Green Brook resident who lives near Villa Maria, reports he’s filed a challenge in NJ Superior Court (Docket No. SOM-L-1784-05). Council will have to renotify all Villa Maria’s neighbors, begin the amendment process anew and schedule a new public hearing on a scaled-back development plan.
  • March 13, 2006 – Borough Council members vote 6-0 to pass amendments to zoning change to reduce the scope of the potential development on the site from 280 to 225 units. Amendments also include increases in building setbacks and a height cap of 45 feet for structures, and allow access to the property from Somerset Street. More than 60 residents attend the meeting, all who speak criticize the development, and castigate the council for not curbing the size further; for not responding directly to their questions; and for not demonstrating how the new development will benefit the borough. (Source: Transcript of Hearing)
  • April 11, 2006 – Courier-News reports four Democrats enter primary for Borough Council to challenge the official Democratic Party slate. All four live near Villa Maria and oppose development.
  • June 2006 - Incumbents defeat challengers in the primary.
  • April 2007 – Somerset County trial court releases decision in William M. Campbell v. Borough of North Plainfield, Docket No SOM-L-1784-05. The Court said 4-2 does not constitute a supermajority. Other court cases are pending. Judge Victor Ashrafi writes:

“This decision addresses only the precise legal issue that defendants have raised in support of their motion for summary judgment – whether a 4-2 vote constitutes a 2/3 enhanced majority when there is a vacancy on a seven-member municipal council. The answer to that question is no, five votes are needed. What a governing body cannot do when it is full, that is, make a zoning change with only four votes, it cannot do because of a fortuitous vacancy. The defendants’ motion as to adequacy of four affirmative votes is denied.”

  • May 9, 2007 - Attorney and civil engineer for McNerney, land developer under contract with nuns to purchase Villa Maria land, appear before North Plainfield Planning Board (Chair Tom Fagan) to present architectural plans for The Watchung Hills at North Plainfield, a complex containing nine condominium buildings, seeking preliminary and final approval to build. Planning Board calls for additional hearings on June 13 and June 27 to continue plan review.
  • May 29, 2007 – North Plainfield resident Katherine Watt prepares and presents alternative proposal for Villa Maria to Borough Council and Planning Board, verbally and in writing. Within a few weeks, founders of the future North Plainfield Citizens for Community Rights establish general framework for organizing strategy. (See Self Governance Ordinance section, below.) To date, no response from Borough Council or Planning Board.
  • June 13, 2007 - Attorney and architect present Planning Board with drawings of proposed condominium buildings.
  • June 22, 2007- Borough Engineer Daniel Swayze’s report on the proposed condo development. Section 2 (Stormwater Management), point d:

“…A maximum allowable slope of 1. 7% is correctly indicated in the [developer’s] report; but there is no indication that this has been provided. Slopes in this area appear to be 30% and grossly exceed the allowable slope. We recommend that the discharge point be extended to Stony Brook. However, final determination associated with stability approval shall be from the Somerset Union Soil Conservation District.”

  • June 27, 2007 - Planning Board postpones testimony of the developers’ traffic expert and the Planning Board’s consultant traffic expert until July 18 due to a miscommunication about the date of the June 27 hearing.
  • July 18, 2007 - Planning Board hearing on traffic issues. Developer presents data, arguing that 225 condos will not significantly increase neighborhood traffic, and that since Interhaven/Somerset intersection already graded “F” by NJ Department of Transportation, no worsening of the situation is possible. Citizens publicly challenge accuracy of data and logic of arguments.
  • July 25, 2007 – Dozens of residents publicly and passionately object to development plan. Planning Board unanimously approves developer’s application.
  • September 10, 2007 - In Campbell case, Judge Ashrafi denies defendant’s argument that a March 2006 vote on a new ARC-amending ordinance (06-01) constituted a complete readoption: Ashrafi writes:

“No one on the Borough Council indicated a belief that the Council was voting again on the entirety of the zoning change. The court cannot allow ordinance 06-01 to stand and effect the re-zoning of the Villa Maria property because five members of the Borough Council have never voted in favor of the re-zoning provisions…Because ordinance 06-01 is dependent on the validity of ordinance 05-22, it too must be nullified until the proper number of Borough Council members vote in favor of the zoning change.”

  • September 24, 2007 - Mayor and Council place the identical ARC ordinance back on the agenda for readoption. Borough residents show up again to publicly object. Borough Council removes item from agenda and offers to meet with NPCCR reps to discuss Villa Maria planning. Meeting never takes place, because Borough officials demand a closed meeting with no more than four NPCCR reps, and NPCCR insists on a public meeting open to all residents interested in participating and/or witnessing the discussion.
  • October 1, 2007 - Borough Attorney Eric Bernstein, at Mayor Janice Allen’s direction, files appeal in Campbell case, seeking to have Judge Ashrafi’s decisions overturned by Appellate Division. Case still pending as of September 2008.
  • April 2008 - Robert McNerney, real estate developer, purchases the Villa Maria from the nuns for $3.93 million and begins filing paperwork with the Department of Environmental Protection for Letter of Interpretation (LOI) seeking DEP consent to demolition, deforestation and building on the site.
  • July 23, 2008 – McNerney’s attorney makes preliminary presentation for plan to build up to 55 single-family homes at the site. Planning Board schedules first hearing for September 10, 2008. Public forbidden to speak at July 23 meeting. Public will have right to cross-examine developers’ witnesses at Sept. 10 meeting. Next hearing scheduled for Sept. 24.
  • Since October 2007, Borough officials have been fighting to keep documents and records surrounding the drafting of the ARC ordinance away from members of the public seeking to review those materials.
  • HYPOTHESIS - Attorneys for real estate developers drafted the 2005 Age-Restricted Condominium ordinance with Borough officials, behind closed doors without proper citizen oversight or input, to pave the way for Villa Maria development.

PROPERTY TAXATION