Op-Ed: The Appeal Of Lackawanna

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Lackawanna Plaza, October 2017. Image courtesy of Google.

The Planning Board’s approval of the Lackawanna Plaza development plan and its demolition of the historic train sheds is currently going though a court appeal. This appeal and recent events have given me a new appreciation for the need to clean up our act, “with dispatch,” on land-use governance. With the benefit of hindsight, Councilor Robin Schlager’s potential conflict of interest & recusal – with its unusual timeline of key events and her unique role as the Class III, Council representative – elevates this issue above that of the just preserving the train sheds.

I am still of the opinion that a successful appeal will just postpone the eventual demolition of Lackawanna Station’s historic train sheds. But, I now see the court appeal as a uniquely helpful opportunity to identify systemic governance deficiencies and corrective measures. I now see a stronger case exists for the plaintiffs, but I’m unsure what success will look like.

The conflict of interest question revolves around four key events:

1.) The May 22, 2018 Council meeting’s introduction, discussion and unqualified support of the Lackawanna application.

2.) The August 6, 2018 Planning Board’s Special Meeting where Dr. Bedford gave his testimony in support of the application’s demolition plan.

3.) On September 27th, Councilor Schlager acknowledged a potential conflict of interest and stated she would seek legal input from the Township Attorney.

4.) The February 11, 2019 Planning Board meeting in which Councilor Schlager recused herself citing legal input from both the Board’s and Township’s attorneys.

To evaluate the conflict issue, I offer 3 questions:

First, why the 4 1/2 month period between acknowledging the potential conflict of interest and her decision to recuse herself?

Second, what purpose or significance attached to the timing of making her recusal announcement once the the public hearing was closed and before the Board discussion and vote?

Third, did the Board’s voting indicate Councilor Schlager’s conflict of interest could have been an important factor?

I think Councilor Schlager had sufficient opportunity to resolve the conflict question sooner – with the similar dispatch called for in the Council resolution. This delay in her recusal attaches greater significance to my original, September 2018 call-out and its narrowly defined remedy to the apparent conflicting interests. I would like to understand the reason she chose that moment to recuse herself.

It was unfortunate she was not present for Dr Bedford’s historic preservation testimony. Her absence precluded, in her Planning Board role, questioning the expert witness and possibly modifying her previous determination, while acting in her other role as a Councilor, of the site’s limited historic importance.

All were aware of her vote on the Council resolution and its historicism language, so her mere presence on the dais was an ongoing reminder of the Council’s request in May to the Planning Board, including the Council’s unanimous support of the application. It was irrelevant, much less necessary if Councilor Schlager spoke at all in hearing the application from that point forward. I now hold a reasonable basis for the belief that her continued presence alone likely had a cumulative influence that materially tainted the Board’s proceedings and the Board’s eventual resolution of approval.

I also reconsidered the importance of the Board’s voting on the two (yes, two) resolutions. Each resolution’s voting, individually or together, could support arguments by both the plaintiff and the defendant as to any influence the votes may indicate. I think the voting record on the 2 resolutions was as close to an ideal political win-win outcome for all the Planning Board members and for the Council getting its desired outcome. I remain suspicious of the Council’s motivations for their after-the-fact ordinance prohibiting left turns on Grove Street. It reminds me of the lyrics to Both Sides, Now.

The court appeal will subject the Council and Planning Board to an independent, unambiguous, official critique of any shortcomings in judgement, process and procedures. A successful appeal will create the urgency for corrective steps.

It might also result in me being wrong about the likelihood of future protections placed on Lackawanna’s historic train sheds. But, first things first.

Frank Rubacky is a resident of Montclair.

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9 COMMENTS

  1. I didn’t mention above, but the seed for the appeal was planted at the Planning Board’s May 14th, 2018 meeting. About the 1:46h mark.

    This was the infamous meeting the Planning Board and HPC devolved into a CYA competition in the freestyle category.

    Mr Schwartz said the preservation issue “came out of left field” and Councilor Schlager said everything was going along, we had our plans, etc. and then “a wrench was thrown in”. Mr Rooney said the HPC concerns were always there, but it was not fully understood. The Chair said it doesn’t matter. The issue has been raised and we have “to deal with it”.

    Yes, they had to deal with historic preservation! Really? Deal with it? Not just lip service anymore? Damn, damn, damn!

    Well, Councilor Schlager really took the Chair’s words to heart in dealing with that wrench.

    The next week the Council passed their resolution. It was the fertilizer for the seeds. Councilor Schlager continued to share her presence adding the rain…and as the garden marker for the appeal. And for too brief a time, a full bloom.

  2. My April 2nd op-ed, Our Town, Our Responsibility was the catalyst in moving a preservation review from sidebar discussions to a center stage review. The question that it somehow sabotaged or undermined the hearings, which it obviously didn’t, is ludicrous.

    My op-ed was published after the first meeting where the applicant summarized the major site plan application points – and clearly showed it would require multiple hearing meetings.

    My op-ed was an appropriately timed, well-reasoned, albeit a sharp rebuke of the land use bodies involved and an alert to the public, based on that introductory meeting. I agree my op-ed was disruptive. Apparently very disruptive. It should have been taken as disruptive in a good way.

    We conduct these open public meetings because we encourage civic oversight and participation. I was bemused by the applicant’s attorney, and Brain Stolar facial expressions, when he wondered aloud what sort of person spends so much of his free time on this application. I was bemused because the public in the audience, the members of the Planning Board, didn’t appreciate it was an indirect commentary on their civic presence. We all were there on our free time.

    The op-ed route I chose was because I understood the quasi-judicial review process; public comment would only come at the conclusion of the hearings. By rule, there was no opportunity to alert the public earlier. Also, the Planning Board was not under any obligation to give my op-ed & subsequent follow-up piece consideration. In fact, the Planning Board was reminded it could not consider evidence outside the confines of the hearings. Further, it was a long, open procedural question whether I would be allowed to testify and the limits placed on me. I had foreseen this possibility. I abided by the rules. I wrote the op-ed. Labeling it a wrench or from left field, when the rules were known by everyone, just begs the need for more pertinent questions.

  3. I believe you are talking my comments out of context at the May 14th, 2018 hearing re: the Historic Preservation issues impacting this application — whose design parameters continued to change throughout the hearings.

    I believe my comments at the time referred to the HPC only belatedly realizing that there was a net loss of metal covering roof supports from the applicants’ latest design then. Which created the the HPC’s rush at the time to now insert that realization and negative impact they perceived — into a newly revised report for Planning Board review.

    This was the ‘coming from left field’ problem I believe I identified then — that they had blown their review at first blush — and now had to recover after the fact, as opposed to advising from the start that this historic site was being significantly impacted in their view.

    Their delayed timing was the basis for my ‘come from left field’ comment — not their overall take on the preservation site issues. It’s that their report had already been presented and reviewed by the parties but without fully advising of their negative reaction to the applicant killing off some of the metal roof supports….in order to accommodate the latest proposed parking plan.

    So it was a timing process impact issue…not content.

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