Debate & discussion before board votes

HAMMONTON—Representatives from Hammonton Gardens LLC appeared once more in front of the Hammonton Planning Board to continue the presentation of their site improvement application at that body’s August 3 meeting. This was a continuation of the previous application, which the board first entertained at their June 15 meeting.

That application—No. 14-21PB—is for approval to construct four new apartment buildings with 84 units to accompany the five existing apartment buildings, with 52 units—which will be renovated—at 882 12th St., Block 1201/Lots 5 & 5.01, which is located in Hammonton’s IDZ (Inclusionary Development Zone) zoning district.

The application was presented by applicant’s attorney CherylLynn Walters, with testimony offered by engineer Thomas C. Roesch, architect Michael Kolchins and Hammonton Gardens LLC managing member Dr. Ira Trocki.

Board members present were James Matro, Michael Messina, Gordon Pherribo, Michael Pullia, board chair Ed Marinelli, Councilman Jonathan Oliva, Councilman Edward Wuillermin, Ray Scipione and Bill Brinkerhoff—the latter two of whom were not present at the June 15 meeting.

Board solicitor Joseph P. McGroarty addressed the issue.

“It’s my understanding that Mr. Scipione has reviewed the meeting tape and is prepared to sign the certification saying so. Mr. Brinkerhoff has not had that opportunity, so he will not be able to vote on this application,” McGroarty said.

While presenting the application, Walters said that the applicant had taken into consideration all comments from the previous meeting, and that this presentation included all requested revisions.

Walters noted that there was previously an “interpretation disagreement” regarding the proposed clubhouse, and whether its location required a bulk variance. Walters said that she discussed the issue with Town Solicitor Michael Malinsky.

“He indicated to me that he negotiated the ordinance that governs the property on behalf of the town, and that the ordinance was written to permit that clubhouse in that location without the need of a variance,” Walters said, referring to Ordinance No. 012-2016 – Inclusionary Development Zone, which governs and authorizes the improvements to the site.

McGroarty commented further.

“I spoke to Mr. Malinsky. He confirmed that he had that conversation,” McGroarty said.

During his testimony, Roesch addressed several updates to the plan, including updates to trash enclosures that had been made with input from Public Works Department Head Scott Rivera. Roesch said that Rivera requested an additional enclosure—bringing the total to four—as well as changes to their orientation.

Regarding the tot lot, Roesch said that the plans now include a bicycle rack as requested by the board. Walters showed the board an image of the proposed playground equipment for that area, which Roesch described.

“It’s roughly about 25 feet wide by 12 feet deep ... It has swings, a slide, some climbing ladders and climbing equipment,” Roesch said.

Roesch also described walking paths, which were added at the suggestion of the board at the meeting on June 15.

“The first one will start out by Route 54, proceed to the left of Building B and go along the existing drive lanes behind Buildings D and E and end at the tot lot. The second pedestrian path will start near Building 4 and go down to Commerce Way,” Roesch said.

The pathways, Roesch said, are proposed as four-feet-wide gravel pedestrian and bicycle paths, and will be made from six-inch-thick dense graded aggregate. Oliva and Wuillermin inquired about sidewalks, and Walters noted that the ordinance only requires sidewalks in certain locations. Wuillermin commented further.

“I understand it’s a very difficult process, taking ideas and verbalizing them, and putting it down into writing, but there were certain things—and I’ll get into that later—that the mayor maintains were discussed and agreed to during the course of these conceptual discussions and the settlement negotiations that may not be captured in detail in the writing of the settlement agreement and ordinance but were discussed and agreed to by the applicant,” Wuillermin said.

Walters replied.

“With all due respect to the mayor—who’s not here this evening to speak for himself and that process—the ordinance speaks for itself. It’s a document. That’s what’s enforceable, and this board’s job is to look at the ordinance and make sure the plan complies with the ordinance as written. Any discussions that may have been had that weren’t memorialized in that ordinance are not enforceable,” Walters said.

Pullia noted that the only sidewalks proposed lead directly from the parking lots to the doors of the new buildings, with no other sidewalks in the complex for pedestrians to use. Matro and Pherribo also inquired about the matter, but Walters said that the plan was within the scope of the ordinance.

McGroarty addressed the board on the issue.

“There’s an ordinance that has language in it. You may not like it, but it is the ordinance that this board is bound by—and the city is bound by. The language is pretty clear: ‘sidewalks shall be provided to reasonably connect the residential units to the parking area and shall be consistent with the concept plans.’ The concept plan is attached, and it is what it is,” McGroarty said.

McGroarty said that he did not want the board “to go down the wrong path on this.”

“I felt it necessary to caution you that we’re not renegotiating the ordinance, which was done in conjunction with the applicant—which is part of the Fair Share Housing settlement,” McGroarty said.

Pullia acknowledged the language of the ordinance.

“It says ‘reasonably connect,’ and I don’t think there’s a board member that’s being unreasonable to ask you to make the property pedestrian-friendly,” Pullia said.

Wuillermin agreed, noting his concern for the children at the complex.

“If they’re going to be walking to collect at the bus stop, they’re probably going to take the most direct path, and that’s going to be in the parking lot—and that’s going to provide conflicts between cars backing up and kids walking on a hard spot,” Wuillermin said.

Trocki replied.

“The property has been there over 60 years. There has not been one accident of one child ever run over by a car, or by a bicycle, on this property for 60 years—and I know, because I would be sued if someone would have been run over by a car or a bicycle,” Trocki said.

During his testimony, Kolchins discussed updated architectural features that would make the proposed buildings and the existing buildings more aesthetically similar, noting that the proposed renovations are consistent with the conceptual drawings presented at the time that Ordinance No. 012-2016 was adopted and published.

“We’re going to be reworking the existing roofs over the porches, replacing the aluminum columns with a more substantial, built-up composite board columns,” Kolchins said.

Kolchins said that siding would also be replaced to update the look of the entryways, and that gable roofs will also be added. Doors and trim, Kolchins said, would be cleaned and repainted—and repaired and replaced as necessary. Wuillermin inquired about the age of the doors and windows and whether they were original from the time of construction. Trocki responded.

“If there’s a problem with a door—if it’s no good—we replace it. I don’t paint over rotten doors ... Can I tell you the age of each door? No, but if there were any bad doors, we replace it,” Trocki said.

Wuillermin inquired about cosmetic updates to the existing buildings, and Walters quoted from Section H-1 of the ordinance.

“For purposes of this ordinance, rehabilitation shall mean cosmetic and architectural design features to the existing buildings exterior that complement the new construction style,” Walters read.

Wuillermin asked if the interior of the buildings had been inspected for possible renovation, and Trocki referenced the ordinance.

“It says ‘cosmetic.’ It didn’t say ‘reconstructive.’ It didn’t say to go inside the building and re-do the inside. It didn’t say to re-do the plumbing, the electrical and everything else. It says ‘cosmetic’ ... I’m a plastic and a cosmetic surgeon, so I know exactly what that means. I may make your tummy look nicer, but I’m not entering your stomach and taking your intestines out,” Trocki said.

During discussion of the application, Scipione spoke about concerns from the Hammonton Board of Education, of which he is also a member.

“The board’s concern is if there was an impact study completed related to the financial burden to the district,” Scipione said.

Walters asked if all of the board’s concerns regarded fiscal impact. Scipione answered in the affirmative, and Walters responded.

“Pursuant to the case of Molino v. Mayor and Council of the Boro of Gibbsboro, fiscal impacts are improper zoning considerations the board cannot take into consideration—the same as the board cannot consider the tax benefits of a new commercial ratable in making its decision, the board cannot consider the potential fiscal impact of a new residential development in taking its vote or making its consideration,” Walters said.

Walters said that the fiscal impact of the project was “assumed by the governing body when it negotiated for the provision of new housing here, including affordable housing units.”

“It was taken into account by town council—or it was presumed to have been taken into account by town council—when they adopted the ordinance,” Walters said.

At the end of the application presentation, McGroarty advised the board of the type of motion required.

“I’m going to need a motion to approve Hammonton Gardens’ application for a preliminary and final major site plan on Block 1201 Lots 5 and 5.01—with consolidation of both lots—but particularly the applicant seeks approval to construct four new apartment buildings—84 units—to accompany the five existing apartment buildings on the site, which is located in the Hammonton inclusionary zoning district per Ordinance 12-2016. The motion is to approve that with all the conditions and exhibits,” McGroarty said.

Before the motion was made, Oliva inquired about a discrepancy between the amount of one-, two- and three-bedroom units as proposed in the concept provided with the ordinance and the one provided for the current application.

“In our last discussion, we talked that there would be 12 singles, 60 doubles and 12 triples,” Oliva said.

The original concept that accompanied the ordinance, Oliva said, had three one-bedroom units, 78 two-bedroom units and three three-bedroom units.

“What is the applicant bound to? Are they looking to do 12, 60 and 12, or is it three, 78 and three? Mr. McGroarty, a question for you: three, 78 and three is what was approved within exhibit A under the original resolution; is that our required bed distribution?” Oliva said.

Walters addressed the topic, saying that the client has an affordable housing obligation.

“Those 13 affordable housing units we have specified bedroom distributions within that 13 units. No more than 20 percent can be one-bedroom, at least 30 percent have to be two-bedroom and at least 20 percent have to be three-bedroom. The balance of the units are at the developer’s discretion, but have to be two- or three-bedroom,” Walters said.

Walters said that the client could not strictly comply with the aforementioned exhibit in order to meet the required bedroom distribution. Wuillermin responded.

“If that’s part of the ordinance, you’ll need a variance for that,” Wuillermin said.

Walters disagreed.

“We don’t need a variance for that because your ordinance requires us to comply with the Uniform Housing Affordability Controls [UHAC] on income qualification and bedroom distribution,” Walters said.

McGroarty said that he understood the board’s concern.

“Tonight, we’ve held the board to the strict interpretation of the ordinance and its exhibits; what they’re asking is that the chart that is on top of exhibit A of the ordinance, where did those numbers come from, and why should that not be considered part of your requirements?” McGroarty said.

Walters said that the body of the ordinance does not specify bedroom distribution but does require adherence to UHAC rules.

“If you’re going to apply the chart from the concept plan and compare that to the straight language in the ordinance regarding UHAC coordination and compliance—then you have inconsistent ambiguity in your ordinance itself, and it’s got to be resolved in favor of the affordable housing,” Walters said.

McGroarty replied.

“You do acknowledge on the exhibit, which we’ve relied upon and held the board’s feet to the fire on that, that you’re asking, in this particular instance—and, again, in all fairness, the concept plan was reviewed by both the applicant and city council, albeit it appears to be a little inconsistent with language—would a variance be necessary to be granted from exhibit A?” McGroarty said.

Walters responded.

“If you want to treat it as a variance, treat it as a variance, but I’ve given you justification for the variance. It’s a legal requirement for the bedroom distribution,” Walters said.

Oliva commented further.

“Technically, as the way that this is written—78, three and three—this complies, as per your percentages, this would comply with Fair Share Housing requirements,” Oliva said.

Walters said that the applicant would thus seek the variance from the concept because the original drawing did not reflect market demands, but Trocki said that he would comply with the numbers.

After a brief recess to confer with Kolchins and Trocki, Walters said that the applicant would, in fact, seek the variance from the concept plan included with the ordinance. McGroarty amended the proposed motion to include the variance regarding the bedroom units. Pherribo formally made the motion, which Matro seconded.

Messina, Pherribo, Pullia and Marinelli voted in favor of the motion; Matro, Oliva, Wuillermin and Scipione voted against the motion.

Trocki addressed the board, saying that he had no desire to enter into litigation with the town of Hammonton.

“If there’s something that can be changed that someone’s telling me that would make a difference, I’m more than happy to listen now—as opposed to going to court, spending maybe $1 million or $2 million of legal fees for the city or more for no reason when it’s something simple that can be changed,” Trocki said.

Trocki continued.

“This is a COAH [Council on Affordable Housing] requirement, so it’s not even me who’s going to be suing; it’s the state. I’m telling you: there’s no reason for it. If there’s something small that needs to be changed, let me know now. That’s why I’m here,” Trocki said.

Oliva asked McGroarty if it would be possible to separate the approval and the variance request into two separate votes.

“I think what was originally agreed upon in the ordinance, in terms of bedroom distribution, is a sticking point for me,” Oliva said.

Trocki withdrew the request for the variance; McGroarty then asked for a motion as stated prior without the variance, which Oliva made and Pherribo seconded.

During discussion of the motion, Wuillermin again reiterated his desire for windows and doors to be replaced in the existing apartments, but McGroarty reminded him that the ordinance does not require such work and that the ordinance alone governs in the matter. Pullia, who served on council when the ordinance was adopted and published, commented further.

“This was sort of presented as, from COAH, ‘This is the deal. Sign it.’ What was said in the meetings—the spirit of the meetings—might have been interpreted by the council as something completely different than made it to the paper, but I asked the solicitor when I walked in here tonight, and he said, ‘What’s on paper is what we have to go by,’” Pullia said.

Pherribo echoed Pullia’s sentiments.

“I was on the planning board way back when, too, when all this happened, before they even got involved with this. We sat here with COAH for I don’t know how many meetings, and we were pretty much told what we had to do, to be honest ... We were also told it could be very, very costly if we don’t,” Pherribo said.

McGroarty cautioned the board further.

“You run the possibility, if you disapprove this, of running afoul of the fair housing settlement,” McGroarty said.

Scipione inquired further.

“If we have to vote yes, then what’s the point?” Scipione said.

Before the vote, Pullia revisited the lack of sidewalks, but acknowledged that requiring them was beyond the board’s purview. Trocki responded.

“The apartments have been there 60 years without sidewalks. We haven’t had one accident, one problem. I’m working with you, as you can see with Mr. Oliva; I said I’ll change without the variance. I’m trying to work with you guys,” Trocki said.

Trocki said that he had no desire to spend “another 50 years” fighting over the topic.

“But, on the other hand, I’m a fighter. My parents were fighters; you know, that’s why they lived through the Holocaust and the Nazis didn’t kill them, OK? And I’m telling you again, I’ll fight,” Trocki said.

The motion came to a vote. Matro and Scipione voted against it; the remaining board members voted in favor, and the application was approved.

In other business, the planning board adopted the following resolution:

• Matthew and Shericka Newsome, Application No. 22-01ZB—Applicant was denied to add a daycare facility as a second use at 474 N. Chew Rd., Block 1901/Lot 22/R3.

The planning board regularly holds meetings on the first and third Wednesdays of each month at 7 p.m. The next meeting is scheduled to be held August 17.