Montclair Owes $123K in Legal Fees After Losing To Grabowsky on Assisted Living

Montclair Owes $123K in Legal Fees After Losing To Grabowsky on Assisted Living

We told you that Montclair developer was victorious in his conflict of interest against the township of Montclair, former Mayor Jerry Fried, and the Planning Board. The suit asserted that Fried and another council member had ties to the church next door to an assisted living complex they approved to be built on Church Street.

Now according to court documents, the town of Montclair owes a total of $123,225.91 in legal fees to Dick Grabowsky.

The township plans to appeal the award of legal fees and has filed a motion for a stay of the award, the Montclair Times reports.

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41 COMMENTS

  1. For the uninitiated, here’s what happened:

    The 2008-2012 Town Council, on its way out the door, voted 4-3, over massive opposition from residents, to approve the building of an assisted living facility (ALF) on the old Hahnes lot. There was no reason for that Council to have rushed the decision, which just about every candidate for Council in 2012 — including me — vigorously opposed. But they did it anyway. Then-Mayor Jerry Fried and Third Ward Councilor Nick Lewis were two of the four yes votes.

    Dick Grabowsky, another vigorous opponent, threw a Hail Mary pass. He filed a lawsuit contending that because Messrs. Fried and Lewis held leadership positions in the Unitarian Church next door to the proposed ALF, they had a conflict of interest. The alleged conflict was that the Church might expect residents of the ALF to become members, and that this may have influenced Messrs. Fried and Lewis to support building the ALF. Mr. Grabowsky believed they should have recused themselves, in which case the resolution to build the ALF would have failed.

    Although I disagreed with the decision to build the ALF, I also disagreed with the lawsuit. I think the Fried/Lewis decision was wrong, but I don’t think they had any kind of a conflict by virtue of being leaders in their Church. The Supreme Court agreed with Mr. Grabowsky, however — I earlier congratulated him for being right, while I was wrong — and held that the Fried/Lewis votes were tainted by conflict. That has put the matter back in the laps of the current Council, which as readers see from the accompanying article, is considering the issue. I personally hope they reject the ALF and ensure that important site is put to better use.

    I continue to congratulate Mr. Grabowski on his tenacity and creativity in fighting this important fight. I must say, however, that I also hope he loses his bid for attorneys’ fees. The taxpayers of Montclair were hurt enough by the terrible decisions of the benighted 2008-2012 Town Council. Mr. Grabowski need not, and in my view should not, receive reimbursement from taxpayers for the fight he waged.

  2. I disagree and feel that the Assisted Living use is a good use. It may not be the “highest & best” use, but that is a little nebulous label the has been bandied about. I think it could stand on the diversity argument alone. Or that the lot is a transitional space between institutional/residential use and the commercial center which broadens what is a highest & best uses.

    Regardless, the fact is other uses considered by many to fit this higher & best goal have proven to be economically unfeasible. The former Hahnes department store closed in 1989. The redevelopment plan was approved in 2001. Various development scenarios were considered and discarded over the subsequent 11 years until the ALF came along in 2012.

    Even if the ALF application is re-presented and approved, it will not be occupied until 2019. 30 years of an unimproved lot sitting. In the last 4 years alone, Montclair has lost almost $1.5MM in revenues while this suit has played out. Any alternative use will require an increase in height from 5 stories to 6 stories and push out occupancy to the beginning of the next decade.

    Lastly, even the Business Improvement District Executive Board has changed positions & jumped on board to support the ALF. Maybe they are also using “it’s better than what’s there”
    rational that is prevalent or they have come to realize that it will contribute to the neighborhood mix. Whatever, a lot has/is changed/ing in Montclair Center since 2012. Maybe people should take a fresh look?

  3. This 123k legal fee payout is the ultimate in public policy stupidity courtesy of former mayor Jerry Fried and the Planning Board he sat on at the time.

    Everyone in town involved in any kind of political way knew Fried and 3rd Ward Councilor Nick Lewis then were connected to their next door Church leadership. Therefore they should have recused themselves from voting.

    The conflict of interest created by this immediate neighbor to the proposed Assisted Living facility was a legal no-brainer. It’s a must do that everyone on any board knows is a conflict of interest. There were and are multiple court cases to guide. This becomes yet another.

    Fried, Lewis..the town attorney then and Town Planner all should have known about this — and told the two Councilors to bow out.

    Just as dumb however, was the shoddy review process and lack of due diligence which both the Fried Council and Planning Board ran at the time to fully consider this facility. Mr. Jacobson above is entirely correct.

    The goal of the Redevelopment Plan which guided everything there is still to revitalize the entire downtown economy. But Fried, Lewis and the Planning Board members involved then did no expert reviews for any of the developer’s fiscal claims to accomplish that goal. They just rolled over and took Kensington’s assertions and statements at face value. Shameful. A complete dereliction of public duty during those rush to judgement hearings.

    Hopefully that won’t happen again this time around.

    Regardless, now the $ chickens have come home to roost and it’s the taxpayers who have to pick up the tab.

  4. PS..I forgot about the hundreds of thousands in lost tax revenues from just something being built there during this fiasco time period — whether another type of building structure or the A.L. facility. Thank you former Mayor Fried and ex-Councilor Lewis.

  5. I’m grateful for Dick Grabowsky for taking a stand on re development failures. Its mind boggling to think that there are still some re development big mistake makers around and serving on committees.

  6. I always listen to Frank’s views. Also, someone else whose opinions I respect asked me this morning to reconsider my thinking about whether an assisted living facility is an acceptable use for that site, especially given the lack of present alternatives.

    I’ve met no one suggesting that an ALF is the *best* use for the suit, but Frank is right that we shouldn’t hold out for the best. I’ve been opposed to the ALF because I’ve thought it’s an unacceptable use of an important downtown space, and that we should hold out for something better.

    The case FOR the assisted living facility is that (1) even if the residents themselves can’t or don’t make much use of Montclair’s restaurants and shops, their visiting family members will; (2) that has been the case at Kensington’s ALF in White Plains, New York, where (according to Kensington) 200-400 people visit per weekday and stick around to eat or shop; and (3) if not the proposed ALF, what should be built instead, and who’s going to build it? Another apartment building, the case continues, isn’t a better use, because Valley & Bloom should more than satisfy any remaining demand for apartments that far from any train station.

    I remain skeptical that an ALF built at that location will generate significant foot traffic and shopping/dining business in town, even assuming that has been the result in White Plains. That, and the possibility of ambulances and driving visitors mucking up traffic on Church Street even more than we’re already seeing, are the main pillars of my opposition. If decision-makers in town are convinced that the ALF really will help our local businesses, and that the traffic and parking problems are manageable, I’ll cross my fingers and hope I’m wrong.

    And I’ll ask again the question that Harvey Susswein asked repeatedly during the 2012 campaign: Why not *senior* living (i.e., for active seniors who do not need the constant care associated with assisted living)? We’ve talked for years about wanting to make it easier for longtime Montclair residents to “age in place.” Active seniors surely would make frequent use of Montclair’s shops, as would their visitors.

    Either way, I’ll wish the current Council the best of luck. Mr. Grabowsky’s lawsuit has landed the decision right in their laps. This will be a tough decision. I’m still at “no,” but I am at least open to hearing the arguments of the “yes” crowd, which includes some people who aren’t usually wrong about what’s best for our town.

  7. I remain confused. If this is a redevelopment location shouldn’t what is built be what the town leaders want that is consistent with the Town’s vision or a negotiated use rather that what the property owners have a right to build? And what is the rationale for having PILOT payments of $100,000 for this proposed use when it would appear that taxation based on the income of the proposed property would justify far greater taxes for the town, the schools and the County if it was taxed like other taxpayers. I must be missing something. This use would appear to be a big money maker for its owners. I don’t get why other taxpayers should subsidize it.

  8. Jeff,
    I appreciate your openness to the argument for..and I think a compliment.

    By definition, a higher use – even if active seniors – would create more traffic and parking issues than the ALF. Also, visitors to the ALF are skewed towards an off-peak, daytime parking need unless they stay on and shop/dine Montclair – which would only support Kennsington’s argument. The Planning Board recently revised its parking demand/unit for seniors to 1.0/unit. This is not largely different from the Plan’s 1.1/unit general residential requirement. FYI, the ALF is set at 0.5/unit. As this would likely be almost totally a residential building (only 1,500+/- sg of commercial), the shared parking analysis would reflect the greatest need during the evening period.

    The site’s alternative potential is largely predicated on either having 2 floors of parking on-site or utilizing a new deck at the Maple Plaza lot across Bloomfield. Currently, there is no direct access to Bloomfield Av from this lot. Off-site parking is permitted under this plan. I think the conventional wisdom (and complaints here) is that parking in the peak period in this part of Montclair Center is, for all intents and purposes, already fully-utilized.

    A new developer would likely result in opening up the redevelopment plan to amendments and updates to reflect current thinking, e.g. affordable housing. While I can see a strong argument to keep AH at 10% if a seniors-only facility, there will still be a lot of pushback for some form of a 20% rule.

    Not considered yet would be what recourse Kennsignton would have/pursue if their use is rejected by the Council. There have already been 3 lawsuits filed over this redevelopment area. It is reasonable to assume some further “separation” costs to the Township.

  9. Some important missing news here. First the distortion again is beginning that this Assited Living facility is the same as senior housing, or the same as an old age facility. It’s not. Residents either need assistance for basic life functions, or they are immobilized Alzheimer patients. Neither group is stepping out to Raymonds.

    Second is the issue of what’s better…their guest visitors or live-in building residents. The head of the Senior Citizen Advisory Committee appeared before the Council recently to lobby for an over 55 senior housing building in this location. That’s an upscale building where residents leaving their single-family homes here can now age in place. This is also a need here in Montclair to maintain “age” diversity.

    These are people with lots of discretionary income and either retired or about to. Kids out of the house. This is the current best use for that building lot — hands down. Spoton above is right. I read that redevelopment plan and the core goal is to revitalize the downtown economy. Plus 55 housing is the best use to accomplish that. So economic diversity folks — sit down on this one please. Not everything here can be directed to all Montclair “values”. This redevelopment project was to improve the Township’s downtown tax ratables and to generate maximum tax revenues — allowing us to spend in other areas that do support our full diversity needs.

    Plus 55 upscale housing there is the direction to go. The Kensington assisted living people have a number of other locations right nearby where they can set up shop. Just not in our prime, downtown center. Sell it off. Move on….

  10. therealworld,

    Staying with the distortion angle, the 55-64 demographic has increased 50% in Montclair since 2000. It is the 65-84 group that is declining. The 85+ has been stable at 2% of population.

    The 65 & up group has gone from 14% of the population in 1980 to 12% of the population in 2010. The only other group to decline, and significantly, is the 20-34 age group who have gone from 24% to 16%. Big picture, the average age in Montclair is steadily increasing (10%).

    As to the “Sell it off. Move on…”,

    Kennsington paid $2.8MM plus $175K into the parking fund. Let’s call it $3MM. By comparison, Pinnacle paid $2.425MM for the SSA building at Seymour St plus whatever the auto service center costs. Let’s round that off @ $3.3MM. The Hahnes lot is capped at 65 dwelling units, maybe 1,500 sf commercial and requires 85+ parking spaces – which is unworkable space-wise.

    Conversely, the Pinnacle space, and adjacent muni lot, etc will have 200 dwelling units, 235 parking spaces, 40K sf retail, and 10K sf performance space.

  11. That Kensington apparently didn’t sign a contingency agreement on their purchase to get out if the “use change” or building wasn’t ultimately approved, or that they may have overpaid for the lot, is really not the problem of Montclair taxpayers.

    Kensington becomes just another party, along with Montclair Township itself — of those in the past who were taken to the cleaners by Messers. Plofker and Stolar in their real-estate negotiations. I believe those developers previously owned this lot under a joint company.

    Hopefully, our current Council and Planning Board now know to end the town’s track record of residents getting fleeced.

  12. Oh, I think it is still very much a problem. Off the top of my head, Fountainsquare can sue to invalidate the 15 year old redevelopment plan. They can challenge that the redevelopment designation no longer applies. They can challenge that the plan says this is a transitional zone on the edge of the CBD and therefore meets the Plan’s goals. They can also sue to vacate all amendments to the plan the Freid Council passed (this one would be a real mess). As the underlying C-1 zoning allows assisted living as a principle use, I think this would give them one basis to do this. Furthermore, the current Council approved the financial agreement – not the Freid Council. The Mayor stated publicly it was a good deal for the township. At the very least, they can tie up any alternative redevelopment for 5 more years. So, it is still a big problem for the taxpayers.

  13. Rubacky – you are moving into the clouds here. Judges do not like to overturn the decisions of elected bodies, unless there are obvious process or conflict issues — like a conflict of interest. That’s why this ruling was limited to that specific issue – essentially leaving all other claims alone.

    So, if as you suggest now, all the Plan amendments might get wiped out and litigation blows up again — this assisted living company could go back to having to provide 106 public parking spots. That was the original deal under the Plan when a hotel was anticipated I believe. It makes the property even less valuable.

    Hopefully cooler heads prevail all around.

  14. Not really. The judge ruled on the central issue Mr Grabowski’s suit. Kensington’s potential suit would have a different issue.

    As to the parking, the Freid Council gave up in March, 2011 (a year before the ALF proposal) public parking rights except for 20 spaces if the developer (Herod) paid $175,000 into the general fund of the Parking Authority. Herod, as you know, sold the rights to Kensington and Kensington exercised the option and made the payment.

    Frankly, while I think the assisted living amendment was prudent for the developer, I don’t think it was technically necessary. The Plan required residential use above the first floor and this is a residential use. The Township continually defined assisted living as a mixed use. Further, the township solicited and approved a shared parking analysis which, under RSIS rules, is only applicable in a mixed use scenario. RSIS definition of mixed use is that it must have a residential component. So, it is walking & talking like a duck all along…and now the Township decision against the ALF involves saying this is not a duck.

    I’m no lawyer, but if Mr Grabowski can resort to a “Hail Mary” and win, then this is just higher percentage, over the middle pass to me.

  15. Oh, and while this is playing out, at least the high assessed land value of this lot is paying a nice chunk of taxes to the schools and the municipal coffers.

  16. So Kensington says 200 -400 people visit per day and those people stay to shop and dine and we believe that? First of all, the number of units in the building are referred to as “beds”. That should tell us everything we need to know about the capabilities of the people living there. Affordable in this case means Medicaid. All of this is good, but not for this location. The people living there won’t be walking around the neighborhood shopping at Urban Outfitters and buy-in lattes at Starbucks. I question the number of visitors – I have a family member in assisted living and even on weekends, I am often the only or one of the few visitors. Plus, there will be daily commercial truck deliveries for food, bedding, laundry and supplies. And anytime a resident is ill, falls, doesn’t feel, is dizzy, etc. an ambulance will arrive, almost a daily occurrence. So we’re looking at Church and Park and a constant stream of delivery trucks and ambulances to accommodate residents who won’t be adding to the foot traffic. This is a facility better suited to a location that can accommodate traffic directly off a main road, like Bloomfield Avenue. The only vibrancy and ALF will add to that corner is in the form of traffic.

  17. “…a constant stream of delivery trucks and ambulances to accommodate residents who won’t be adding to the foot traffic…”

    I pause and wonder every time this argument is made because it works against the person using it. This is essentially making a case for prohibiting assisted living / nursing homes uses in town.
    In which neighborhood would it be right to subject the residents to this constant truck and ambulance traffic?

  18. If only the Municipal Building on Claremont Ave could be the Assisted Living site and the Municipal Building be on Church. That would work better.

  19. Rubacky asks: “which neighborhood would it be right to subject the residents to this constant truck and ambulance traffic?

    How about the church parking lot where the old Renaissance school operated from where the BOE rented — on lower Park near to Bloomfield Avenue. How about the building where no one wants self-storage next to the police headquarters…just change the entrances so there’s little impact on to Portland Place. Access from Bloomfield or through a deck on to Valley Road. How about the current municipal building site on Clarmount…all these (and maybe others) have quasi-commercial very active situations now. So no whining is possible about newly impacting the few residents already there.

    Bottom line – which you keep discounting: assisted living is not the best economic use. Best use is plus 55 housing…or this, combined with Millennial upscale starter housing — all designed to limit school age kids from configuation and space design. The more the merrier for the downtown — if parking can accommodate. Even with Valley and Bloom. Our retail businesses need those bodies.

    The guiding redevelopment plan there says down economic revitalization is the main goal. Well, there’s already a hotel, so either another parking deck to handle the 106 spots originally contemplated — or some new residential building that puts even more people with lots of discretionary income directly into the downtown.

    That doesn’t mean dismiss Assisted Living. Bring it on. Just that this exact spot is not the best for it. There are other places Kensington can go.

  20. So, spotontarget, you are one of the township policy insiders that think we should not be subjecting the highest use zone – our commercial areas, the almighty C-1 zone, the Central Business District, the Montclair Center, Downtown Montclair to the extra truck and ambulance traffic. The policy insiders want to move it to a less dense, more residential area where these land owners can share the little side effects of development of Montclair Center. Because, our poor little commercial district already has too much noise and congestion. Brilliant! Great minds!

    Oh, a little ‘optics’ issue for the insiders. Renaissance School moved out, expedited in part because of an dangerous asbestos contamination issue. Yes, we were right to protect the little ones. I’m not sure how fully remediated the space is currently? Do you know? Anyway, the alzehimers… well, really, does it matter at their age? And the workers.. that may be an optics problem, too. Creative choice, though.

    At what point do the policymakers look at something besides revenue?

  21. Rubacky- I really don’t know what you mean by being a township policy insider. If you mean that I can read a redevelopment plan and see it states downtown economic revitalization being the chief goal — and then, analyze that this assisted living building does not really fulfill that goal — well then, I guess I’m a township policy insider.

    If you also mean that I can see other transition locations nearby and on the periphery of the downtown that already have commercial type traffic and activity and so an assisted living building would not change the use or the action that’s already happening there — well again, I guess I’m a policy insider.

    To me however, it’s just calling it logically as it plays.

  22. None of these. It is because you, as the Planning Board and Council, apparently never read the opening paragraph of our Master Plan…the 1 year anniversary is this very month. I therefore proposed another amendment to this so young and so tragically flawed document. Just delete this opening paragraph (d.b.a. Section 1.0).

    Watching the last 4 administrations and their Planning Boards handle land use policy has been like watching a developer vs government Rock, Paper, Scissor marathon. It would be nice if we had a coherent vision.

  23. Logically, the only alternate location that makes sense is to have them assume the Maple Plaza, C-1 zoned space with their facility over ground-level parking. The Township bid $1.4MM for the smaller Social Security Building parcel, so a swap of this parcel & Church St parcel could logically be worked out price-wise. Kensington gets their downtown location, the property is already a redevelopment zone, and they can build up to 6 stories like they originally wanted to do. Montclair can revert the Church St lot to 131 car surface parking (plus any excess available in the Maple Plaza lot) until a better development option comes along. And, they can build now.

  24. Frank, I think that your idea is a correct solution. Maple Place is better suited for the assisted living.

    I believe that most of the staff would rely on public transportation to get to work and this location is rather convenient. (The staff of my grandmother’s assisted living lived mainly in the Oranges and Newark and some had two different busses to take to and from work.)

    Please explain what would happen tothe Social Sec Building site if this swap would be possible. Could it be preserved as an open plaza?

  25. Sorry frankgg, my reference to the SS Bldg is indirect and obviously confusing on the face. So, disregard.

    Basically, the Township would swap their Maple Plaza property with Kensington’s Church street property. Whatever the financial difference to make Kensington whole (after giving them an extra story) is relatively small compared to what the Township gets 1) not having an ALF on Church, 2) the interim ability to use as 131 public surface parking lot until some developer comes along and dangles a better use. The 55+ restricted residence idea for Church St though has got to go because it doesn’t make any sense. Best & highest use is open market housing up to 7 stories.

  26. That would be such a good solution. (except for the extra story) Thank you, Frank

    I’m quite familiar with the Assisted Living world. My grandmother resided in one nearby for about ten years. Since sometimes she would only eat her dinner if I fed her, I would pop in at least once a day. I actually loved to go and loved her devoted caregivers. They became like family. They are quite underpaid considering that the AL structure charged $6.8k a month.

    There were very few family members and loved ones visiting the elderly residents. Only rarely.

    $6.8k per month is actually the lowest price around here I’ve seen for a private Assisted Living. Across the street from my Grandmother’s (in West Orange), the fancier Assisted Living costs about $14k per month. Its not as pleasant as where my grandmother was, in my opinion. The FANCIEST Assisted Living around here in West Caldwell, costs a fortune. Now there is an excellent AL in Roseland that people are talking about.

    There are GREAT community houses in Montclair and Upper Montclair that cost about $1.5k a month for room and board, but as soon as you cannot walk anymore, You have to leave. (by regulation….sadly)

    Some types of Medicare will pay for 80% of doctor perscribed health care at home. I am caring for my mother at home with this solution of part time certified caregivers and I’m very grateful it works for her to age in place rather than in an Assisted Living. Its a blessing and a huge savings.

  27. Sorry, frankgg, I offered a logical alternative as an exercise in problem-solving…and to make a point. It is not an option that fits with the current land use mindset of the key stakeholders.

  28. Current land use trends in planning call for mainly residential neighborhoods with street level retail that serves the residents. A good example (from about a decade ago) is the Livingston Town Center https://www.onyxequities.com/investment/livingston-town-center/ (what it looks like) https://www.neighborhoodscout.com/nj/livingston/town-center/ (neighborhood profile)

    The real old time town centers began to die in the ’80s when there was the shift to the convenience of big suburban shopping malls, But now the big shopping malls have mostly died too. They’ve lost their anchor stores (like our Hahnes) and there isn’t much demand for the smaller shop spaces that many are relatively expensive and presently without much demand. https://en.wikipedia.org/wiki/Dead_mall

    Montclair Center is an existing built condition with its valuable character and identity, built to serve a wealth suburb about a century ago. (East Orange Center once had B. Altmans, Peck&Peck and other thriving Madison Avenue shops, more so than Montclair.) Montclair’s existing center is largely handicapped by the inconvenience of of being sliced in half by busy Bloomfield Avenue. The sloped topography and the high volume of traffic that resists to being “calmed” by conventional, cookie cutter planning methods. More residential development is taking over the existing suburban density of our territory and this is making traffic much worse. The planners are not required to present traffic feasibility studies to the public during the decision making process and here is where the largest problem arrises for the successful re development of Montclair, in my opinion. The public should require the planners to do so in the decision making process.

    Another big problem is that the new type of residential served by street level retail seems out of character because of Montclair’s strong vintage residential identity. The current development mindset seems too detached from this strong existing residential character. There are already walkable downtown neighborhoods and second and third floor residential over the shops. (I do like the GlenridgeAve/Sionas residential building and would like more of them as a re development solution)

    The current mindset is to build more and more residential in the towns’ centers but we already have fine successful existing examples like the Upper Montclair Center neighborhood, mainly residential with street level retail that serves the residents. Upper Montclair Center is a successful example of the residential town center trend.

  29. Mr. Rubacky, you are clearly a frustrated developer, but as I see it — have no projects to show to date that required any actual lot assemblage or construction development costs. Nor, do I believe, you sit on any board to really influence town decisions.

    Yet, you write with the authority of someone who knows exactly what is right and what should or can be done. Mr. Spot above clearly said that there could be other sites in addition to the alternative three he or she proposed. Maybe your Maple Place is another good idea. But here’s where you are grossly off base.

    If you think it through, Kensington may not be made fully whole going forward as you offered because they clearly overpaid for their lot. As I posted above — they didn’t seem to have a contingency in the event their project there was not approved. Right now, they are carrying the interest on what they say is a total purchase and cost to date outlay of $4.3 million. Plus, like $80 thousand a year in taxes going forward I think.

    None of the lots mentioned above likely cost this much today so there really can be no equal value exchange. The SS building is to maximize value for that arts and entertainment Welmont area. So Kensington is likely going to lose some money if they stay in town. It may be that their best hope — if they do not win approval — is to sell out and move on — unless they are willing to accept long term gain and relocate to another site nearby knowing yes, the land value there might be less but still – they now have the ability to build quickly and to operate.

    As I understand it, the town is not obligated to approve this facility smack in the middle of the Church Street downtown. This assisted living “use” was not approved there it seems originally under the Redevelopment Plan. So instead of the developer playing hardball or acting incensed today, they should think about how to extract as much value as they can out of some arrangement to stay in town should non-approval appear likely — yes, maybe somewhere else nearby where they are fully wanted.

    Regardless, that doesn’t mean Montclair taxpayers have to cover them for their mistakes or losses in business working with the last developers.

    Sure, they can try and sit and wait the town out. But what happens if the Council announces it’s not ultimately changing the use there on Church Street and also — they are going to now move to amend the Plan and enforce eminent domain to purchase that lot. If Kensington won’t build to an approved use going forward, and has the right to do so, the Town could be within its rights to force execution of the Plan there and therefore require the building of some approved use to be constructed?

    What will happen then? Sure, Kensington can sue …tie everything up…but now they may on the hook also for the township’s tax losses as damages within that time period — during the time they’ve unreasonably prevented Montclair from executing a democratically agreed to Redevelopment Plan. A Plan they now fall under and may now be inhibiting the execution of.

  30. Montclair’s other existing residential “centers” that are actually good subjects for revitalization and improvement are the South End Center, Walnut & Grove, Pine Street, the Tierney’s business area, Maple Avenue (Glenfield), Watchung Plaza and Valley Road at Laurel. Having small residential business centers in town (there are at least nine already) is consistent with the original master plan that created Montclair, conceived to have several small village centers and not one big center. Montclair was originally planned with six train stations, not just one central station for that reason.

  31. therealworld,

    Let me first say your post on the BOE mtg thread was very good. As to my frustrations and skill sets, they are really immaterial unless you are criticizing my tone. I do write with conviction and lack many social niceties. But, I’ll assume the points I make are most irritating to you.

    I regret the SSA Bldg reference. I was not advocating the swap ever involved this property – only that it being bought at auction probably is our best indication of property values in Montclair Center.

    The problem with any alternatives outside a redevelopment zone are the density and setback zoning requirements, and height in the OR-3. The Council would have to pass a several upsizing amendments to the OR-3 and C-1 zones which go directly against the recently passed Master Plan and just good planning in general. Further, the Fountain Square business model is to be in downtown locations and to ask them to go outside the downtown is not going to fly. Gateway 2 won’t work because of ownership issues. Immaculate Conception property won’t work either. There is no place else that would be acceptable to either the Township or FS.

    So, FS can play the waiting game legally for 3 more years. The Council doesn’t have to approve the AL use. Eminent domain is a non-starter for land cost reasons…look at what the Township has the land assessed at. The Governing Body at the time caused the conflict of interest. As most every layperson has noted in hindsight, it was pretty obvious.

    The land swap is close in purchase price value. Any difference can be made up with air rights to a 6th story and any balance would be in the six-figure range – a one time expense. KS would have to eat the redesign costs, but the much lower assessed value of the land will pay that back over the life of the PILOT.

    The no-brainer land use & financial decision is to go ahead and let KS build on Church St. I accept this is will be a political decision. But, there are no good alternatives except Maple Plaza and the Council will just be digging the prior Council’s hole deeper under any of these other scenarios. But, I understand the unmentioned, underlying obstacle with Maple Plaza. I think this is driving their actions more than anything else.

    PS: and all this shoots the arguments of other posters here that AL use is OK for the C-1, just not in this location. It doesn’t even work in the C-1!

  32. And speaking of land values:

    Montclair sold its 1.13 acres under the Valley & Bloom parking deck for $1.25MM in 2012. Pinnacle bought the SSA Bldg land, only 0.62 acres, in 2014 for $2.425MM.

  33. No Mr. Rubacky, it’s not your tone that is of concern. It’s your lack of real world valuation experiences based on what I perceive to be either a lack of actual real estate development work, or actual decision-making from being say on the Council, or on one of the key boards voting on these development plans.

    You continue it appears to make valuations and comparisons based on lot size and zoning use. Then show price point differences. That’s fine for say residential comps, but it frequently doesn’t hold up for commercial development. For example, the developer obtaining the Social Security building likely knew that this building was key to the entire build there. They virtually had to buy it so whatever the cost was from that auction — assuming almost everyone bidding knew that owning that lot would then allow them to get rights to develop under the entire redevelopment plan there — was key. Same for buying the Wellmont theater it appears. Another must own to get the entire project.

    Owning those two lots I would think virtually insured being named redeveloper for this entire arts and entertainment complex that it appears the township is creating.

    Therefore making a SS building the comparison and valuation to the Assisted Living Church street lot, or your proposed Maple lot or some of the others noted here above — really just cannot be made.

    In real world leverage — they don’t necessary hold up because SS was a virtual must have. Likely the same with getting that car fix it place there too – the STS. I have no idea what they paid for it, or will pay for it. But rest assured it will be much higher than if a standard land and business evaluation were undertaken.

    Business is frequently just, who needs who, when and really how much. And this is the frequently missing piece that I see when reading your number crunching and analytic valuations.

    Should the town have held up the developer for the parking deck for more. Who knows…that was the ground lease with something already built there..that the developer clearly needed to obtain. But again, the township wants/needs the hotel…so I suspect they were not looking to pin the Pinnacle on that piece of the deal.

    And that is my main point.

  34. “Should the town have held up the developer for the parking deck for more.” You sound somewhat like a commercial realtor…and I don’t mean that in a good way.

    You know a lot and then you all of sudden go into “likely”, “who knows”, “no idea”, and “you suspect”. You are also a little defensive regarding redevelopment, but I can work with that. However, to even hint that Gateway 1 was a good deal for the Township undermines your credibility. While that wasn’t this Council’s fault, the land sale was mistake out of weakness.

    BTW, Pinnacle doesn’t speculate anymore. They learned their lesson. That’s why the Seymour Redevelopment Plan allows 2 buildings to be built on the Eastern Parcel. I’m guessing, like every other redevelopment project, the Township’s key role is to assemble the properties. Same issue with the Church St lot. Redux, Council #4. People want the Council to assemble the properties for the best & highest use. The Hahne’s redevelopment area just eats our Councils & Panning Boards like morning donuts.

  35. Mr. Rubacky – I honestly don’t know and couldn’t begin to consider a formula or thinking used for the hotel’s Orange deck to assess its value. The town, it appears, owns the land and provided the last owner with a ground lease. A deck was built there. Now, the new developer has to rebuild that parking function fully with some lift and slide mechanism they keep talking about publicly.

    I obviously haven’t seen this agreement. I don’t know how the tax assessor made their valuation judgement. Again though, because there is an existing build their already and more renovation required to further improve it, I’m certainly not and I believe you are not in a position to fully judge that valuation. Is there some revenue sharing from the parking? Are other payments required. Unknown.

    I suggest you ask those who negotiated that deal what their thinking was and all variables considered …before making a pure land to value assertion. That’s my point.

    Which goes back to my original point that you do not necessarily use or have all the facts and variables for each deal — and yet always make a lot size and zoning asserion of value..possibly ignoring other potential commercial variables.

    As to your final point how the Church Street lot is still dogging the Councils and Planning Boards, it appears that the inability to get a build under this Church Street Redevelopment Plan (or whatever they call it) and the ability for the original owner of that lot to also create competitive parking there — was both a failure of contract language. It was a failure by those negotiating and drafting the town’s redevelopment agreements many years ago.

    I do remember the Manager then, a Mr. Hartnett writing something or saying something publicly how the township was precluded from stopping the developer’s parking competition around the downtown, or that Montclair couldn’t even force the developers to timely build at the Church Street lot then. Why? Because the Plan or the redeveloper agreement contracts did not specifically call for it.

    I do know that Montclair had a redevelopment law firm specifically drafting these agreements back then which obviously did not fully protect our interests. However, it appears that those kind of self-competition and “must build by” issues have been addressed in later drafting – like your mentioned Gateway Plan.

    Therefore hopefully, any new contracts created will carry those must construct requirements — and the town cannot be held up again by an owner who wants to sit, or change the “use” for their not the taxpayers benefit.

  36. I must say we are starting to agree on several points.

    You’re right my valuations are crude and simplistic.

    My crude calculations aside, it seems that the purchase price spread raises questions for you, too. Normalizing the deck land and the SSA bldg land purchase prices to a per/acre basis, the per/acre spread between the two purchase prices is $2.8MM. That’s quite a spread to rationalize.

    I would agree with you that the deck land sale was priced, in part, to facilitate the property owner’s improvements.

    I also think it was important to the developer in getting more favorable financing and improving the prospects for a hotel deal. In addition to allowing too much density, the Township’s fervent desire for a hotel seem to cloud our execution on both Hahnes and Gateway 1.

    As the Township Planner and others have frequently stated, no one can build to 6 stories without the Township’s participation (a.k.a. using our public parking assets) to meet the parking requirements. Coming full circle on this discussion, history has shown developers (except Fountain Square) couldn’t make this lot’s redevelopment work without new, additional Township participation to address the parking capacity constraint. To develop the Church St lot with a higher & better use, it appears the Township needs to assist a developer in either reducing the parking demand for the site or finding more parking capacity off-site.

    Lastly, I agree with you we are betting smarter and executing better with each redevelopment area we create. Of course, our overall land use strategy for Montclair Center, and its periphery, is not without risk. Executing an imperfect plan well is usually a better return over perfecting a plan. A key driver is the impact of the time factor.

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