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:
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.