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NEW BRUNSWICK, NJ—In an unprecedented defeat for a controversial developer and their attorney, the New Brunswick Planning Board narrowly voted down a proposal to build a 52-unit apartment building on Mine Street on March 10.
The board deadlocked, denying Construction Management Associates' (CMA) variance application by a vote of 4-4, the first time in recent memory that a development did not garner unquestioned support from a city agency.
And after a few months of suspenseful waiting, residents were satisfied with a subsequent plan to develop the site into 26 apartments, less than half the number CMA originally sought to build.
The new application, which required Planning Board approval because it had ten less parking spaces than required, was deemed a vast improvement over the prior application which only called for 43 spaces, when nearly 100 were required.
The approval of the new plans marked an end to a tumultuous process that lasted over a year and saw overcrowded hearing rooms, complicated legal objections, multiple conflicts of interest and recusals, as well as passionate testimony about a systemic parking problem and pervasive municipal corruption.
"This has embodied what the democratic process should be for an application," said Suzanne Sicora Ludwig, the Board Chair whose "no" vote was the deciding factor in denying the plan for a 52-unit building.
"If you were not here, more than likely, that proposal would have gone through," board member David Gross told the group of citizens who had opposed the project.
"Your opposition, for better or worse, changed this project… It was better than reality TV."
AN UNPRECEDENTED VICTORY FOR RESIDENTS
The project was part of a joint venture with the landowner, the New Brunswick Development Corporation (DEVCO), a non-profit builder who redeveloped much of the city's downtown.
Never in recent memory has a DEVCO project failed to garner the support of either of the city's land use boards.
"We — the people of this community — did it!" wrote Jennifer O'Neill, a Mine Street homeowner and former Rutgers University administrator who served as the leader of the strongest opposition movement of its kind in over a decade.
The odds seemed to be stacked against O'Neill and her neighbors, who took the unusual step of hiring their own team of experts to make their case to the Planning Board.
Peter MacArthur, an attorney with Azrak & Associates, said he was surprised by the board's decision and that he had never before encountered a tied vote in all his years as a land use attorney.
City Councilwoman Elizabeth "Betsy" Garlatti opted not to participate in the hearings due to her employment with the state's Higher Education Commission, leaving only eight members of the board cast votes on the project.
Another board member, Andy Kaplan, recused himself due to his employment with Rutgers University, and was replaced by an alternate.
Typically, the board hears a presentation about a proposed development project, and listens to any public comments, the same night they vote on the project.
But this application was far from typical, resulting in lengthy hearings and testimony from dozens of witnesses over the course of more than a year.
"There was nothing routine about this application," MacArthur told New Brunswick Today.
Since the plans were first introduced in late 2013, the Planning Board held ten public hearings on the project, including two that had to be cancelled when more people showed up than could comfortably fit inside City Hall's Council Chambers.
The hearings were eventually moved to a larger room, and an ethics complaint filed by the author of this article resulted in the board's longtime attorney stepping aside.
Dozens of speakers criticized the apartment building proposal during the hearings, and the developer eventually scaled back the plan from 57 units to 52 units in response. But opponents were still not satisfied the project was a good fit for Mine Street.
"Through perseverance, standing up for what we believe in and laying out the facts, we provided the New Brunswick Planning Board with the information it needed to make the right decision on Tuesday night," said O'Neill.
O'Neill had testified that the building would cast a shadow and block sunlight to her property, and make an already difficult parking situation worse.
"We're very pleased with the Board's decision," said Jonathan Mills. "They did their job and weighed all of the evidence properly in arriving at their decision."
BUILDERS RARELY LOSE WITH COUNTY LAWYER ON THEIR SIDE
The deadlock vote in March dealt attorney Thomas F. Kelso just his second defeat in more than fifteen years of regularly representing the city's biggest developers.
Kelso is also the county government's top attorney.
It was the first time since 2007 that Kelso lost a case before either of the land use boards in his home city of New Brunswick.
A review of more than fifteen years of meeting minutes reveals Kelso has appeared before the city's Planning and Zoning Boards more than any other attorney.
Kelso made at least 87 appearances at the boards since he was sworn in to the powerful public position of County Counsel in July 2002.
New Brunswick Today has raised questions about the ethics of Kelso simultaneously representing taxpayers in his $189,000 job as the county's top attorney, and some of the county's largest private developers.
His clients include the likes of DEVCO, Boraie Development, Pennrose Properties, Robert Wood Johnson University Hospital, Wick Enterprises, and Edgewood Properties. He also serves as the Executive Director of the New Brunswick Democratic Organization.
When New Brunswick Today raised the issue with the potential conflict of interest, Kelso raised his voice and said that this reporter was "just creating mischief."
Only once before did a board in New Brunswick vote against one of Kelso's clients, when the Zoning Board of Adjustment came one vote shy of approving a variance application in August 2007.
Kelso's only loss in recent memory came when the Zoning Board of Adjustment narrowly rejected an expansion to the Chabad House, a dormitory for Jewish students on College Avenue. The vote was 4-3 in favor of the variance, but five votes were required in that case.
Those plans were later changed, and the modified version submitted included a lower floor-to-area ratio (FAR). Kelso returned to the board ten months later and secured a unanimous approval.
In a similar situation, a CMA-affiliated project failed to get the five votes it needed from the Zoning Board under attorneys with the firm Hill Wallack in 2010.
After Kelso was hired to represent the developer, the floor plans were changed and one member switched their vote.
It was only the second time in over two years that the board turned took any action besides a unanimous approval.
Two buildings that once stood on the site of the proposed building were leveled in January and February, despite a pending historic designation for the street.
DEVCO had bought the two adjacent properties on Mine Street from Rutgers University for $1 in September 2013, and quickly engaged city-based CMA, also known as Premier Properties, to develop housing for the nearby New Brunswick Theological Seminary.
Earlier this year, CMA demolished both properties with the approval of DEVCO.
Like their well-connected attorney, DEVCO is not accustomed to losing votes at the city's land use boards.
DEVCO President Chris Paladino did not respond to a request for comment on the failure of the Mine Street vote.
CMA President Mitch Broder referred a similar request to Kelso.
"My client and I appreciate the time and effort that everyone invested in this matter including the neighbors, Planning Board members and all the professionals who participated in the hearings," Kelso told New Brunswick Today shortly after losing the vote.
"We respect the decision of the Board and have heard the comments and suggestions made by both the neighbors and Board members during the course of testimony," he added.
ALL NO VOTES WERE CAST BY WOMEN
After months of testimony and legal argument, board members finally began to discuss the project amongst themselves around 10:20pm on the fateful evening.
Opponents' testimony had stressed a wide variety of points, from fire safety concerns to challenging the jurisdiction and integrity of the board, but the members who spoke against the proposal said the decision was ultimately based on two factors, the "parking shortage" and the scale of the building.
Four women, including the board Chair Suzanne Sicora Ludwig, voted against granting the parking variance that would have made the development possible.
Meanwhile, three men on the board, and a female designee voting on behalf of Mayor James Cahill voted for the project.
Linda Hunter led the way, identifying both issues in her remarks and saying "It's clearly going to overwhelm the neighborhood in size."
"I think that there are too many dissimilar architectural features and it's just too big… Perhaps something smaller would have been more appropriate for this situation."
Hunter was the first one to speak substantively about the project, delving into the parking issue as the audience looked on, deeply engaged.
"Just because you don't have a parking permit to me doesn't mean that you're not going to park illegally," Hunter said. "And enforcement is very difficult late at night and when you have snow on the roads."
"Fifty-three spaces short is just going to exacerbate the situation. Parking, to me, has major impacts on quality of life."
One of her colleagues, agreed and her remarks showed the tide shifting away from Kelso and the developer.
"On a street like Mine Street, I don't think that's doing anything for the quality of life," said board member Carly Neubauer.
"I think it just might make it worse," said Neubauer, saying that approving the variance would amount to an unacceptable deviation from the law and the city's redevelopment plan. "This still is a violation at the end of the day."
But one man, a former Police Director who is now an attorney, told the crowd he wanted to pass the proposal.
"I actually believe that the project meets the requirements of the redevelopment plan," said Joe Catanese, who also serves as the Mayor's campaign treasurer.
"I believe we heard testimony that the majority of the properites on Mine Street are not owner-occupied," Catanese said, adding they were in varying conditions.
"To walk three or four blocks to the Gateway parking deck is not a big deal," said Catanese. "There's monthly parking in the Gateway."
"I did take it pretty credible that the applicant… testified of his experience with other projects," said Catanese, citing the fact he operates buildings with supposedly similar ratios of parking to housing units.
"I haven't really heard anything to the contrary to say that it doesn't work, so I'm taking Mr. Broder at his word that his other projects and his experiences are positive and not negative on that factor."
But the final board member to vote, the one who chaired the series of hearings, was ultimately the one who would decide whether the project passed or failed.
"I have a problem with the scale of the building and I do not believe that it's harmonious with the neighborhood," said the Board Chairwoman, at the very moment it first became clear the citizens could actually win.
"Seeing the shadow study disturbed me because," she said. "It's interfering with the right to sunlight of the people next door."
Ludwig also pointed to the claims that a proposed car-sharing program, which would be available to residents partly at the expense of the developer, would lower the demand for parking.
"I don't know that I agree with the car-sharing program," saying that there was not even testimony to prove that it would have an impact.
In the end, the room sat silent after the vote, with only a few people aware of what happens when there is a tie: the proposal fails. Eventually, the citizens realized they won, but still appeared to be shocked.
Ultimately, even MacArthur, the attorney for the opposition, said he was not expecting to win the vote.
"I always thought the win would come on appeal," MacArthur said.
Hunter and Rojas both left the board shortly after the vote, as did Joseph Catanese. Their departure was part of a larger exodus that took place, also seeing the replacement of Kevin Jones.