Lawyer to judge: Send Lackawanna plan back to board
BY JAIMIE JULIA WINTERS
Attorneys battling over the development of Lackawanna Plaza were back in court last week, with preservationists asking that the application approved last February be sent back to the Planning Board for reconsideration of a handful of issues.
The judge is expected to have a decision after he researches the issues, with no time frame given.
After 16 contentious hearings in which historians, supermarket and traffic experts, planners and engineers testified, plans by developers Pinnacle and Hampshire Cos. to build 154 housing units, a supermarket and 111,726 square feet of office retail space at the 7.5-acre site of the former Lackawanna Train Station were memorialized in May 2019.
The developers sought relief to create 459 parking spots for the entire site, far less than the required 833. To make way for the parking for the supermarket, the plan also includes razing the mall, which since the 1980s has encased the original train waiting platforms.
Historians attempted to have the developers save all of the historic elements of the 1913 station, including the platforms, by repurposing them for the supermarket, and suggested that the former Pathmark building be razed instead.
A month after the Planning Board memorialized the plan, a suit was filed against the township and the board by A Better Lackawanna, LLC — a group of 200 Montclair taxpayers and historic preservationists — and Greenwood LLC, a medical office at neighboring 1 Greenwood Ave.
In its suit, the group says that the Planning Board’s approval failed to consider — and is in violation of — the township’s master plan, historic preservation ordinances and parking ordinances, according to court documents filed by attorney Jay Rice in Essex County Superior Court.
In August 2019, the judge granted an order to intervene by the developers.
The development, including the supermarket, which is expected to be a 29,000-square-foot Lidl store, is now held up in court.
The attorneys reconvened via Zoom on Oct. 29, with Judge Keith E. Lynott hearing oral arguments.
The preservationist group’s attorney argued six points that should be reconsidered by the Planning Board:
- The developer plans to build on top of a previously undisclosed county easement;
- The approved traffic plan, which includes left turns on Grove Street, is now illegal, because of a later township ordinance;
- The public was denied the right to question changes in the plan after they were disclosed on the night of the board’s vote, specifically that the supermarket tenant, Lidl, would take only 29,000 square feet out of a planned 47,000 square feet;
- The historic nature of the train platforms needed further review;
- The Planning Board violated the public’s First Amendment rights by limiting who could speak and for how long; and
- There was a conflict of interest by a Planning Board member who had already voted on the matter as a member of the Township Council.
The county easement is a 5,000-square-foot berm where an apartment building would be built. It gives the county access to the property and provides green space for runoff. Rice questioned if the developer had approached the county about taking over use of the property. The developers’ attorney, Tom Trautner, said that the plans clearly delineated that the apartments would be situated over the area and therefore the developer was not trying to hide anything, but he conceded that Planning Board members did not discuss it much. He said that they applied to the county for the easement.
The traffic ordinance, passed 2½ months after the application was approved, would make left turns illegal and therefore change the site plans and traffic flows, Rice said. Trautner countered that at the time the application was approved, the town had not yet passed the no-turn law and therefore it didn’t apply. He said that decision would also be up to the county due to Grove Street’s being a county road.
Rice also pointed to Planning Board member and Councilwoman Robin Schlager’s alleged conflict of interest and recusal from the vote at the last hearing. He said the reason was not given by Schlager, and her recusal at that hearing deprived the board of appointing an alternate.
Trautner said she decided to recuse herself because she was asked to by a member of the public who mentioned an appeal. In May of the previous year, the council approved a resolution asking the Planning Board to consider the current Lackawanna redevelopment plans “favorably and with dispatch,” stating the area needed a supermarket. Trautner said her recusal was not due to any personal gain or any personal interest in the project.
The supermarket’s size also came into play, with Rice contending that the platforms were being sacrificed due to the supermarket’s size of 47,000 square feet and that, with a much smaller market at 29,000 square feet and with retail tenants taking up the rest of the space, locations, loading docks and circulation would also change. Trautner argued, however, that the building's footprint would remain the same, and that there was no distinction in land use laws between supermarket and retail.
The judge said that the historical value of the building and historical preservation was within the purview of the Planning Board to decide, while Planning Board Attorney Dennis Galvin reminded Rice that 80 percent of the historical elements were being saved with the project and that the Planning Board had no obligation to save those elements.
Rice said that public comment was limited to three minutes, in a sense “muzzling the public” at the seventh meeting, and that no comment was allowed at the last hearing, when the supermarket tenant and size were announced. Trautner said that the public had 15 hearings in which to comment and that the Planning Board chairman had the right to control and limit the times for the hearings.
But the judge questioned why the public shouldn’t be afforded the opportunity to get answers after Lidl was announced. Trautner said he does not recall any protest of not being able to speak at the last hearing.
Although Galvin referred to the area as a redevelopment site in which the council would be involved, Rice pointed out that is not the case, and the property is not listed as a redevelopment site by the Planning Department.
Rice said that only if the application is remanded back to the Planning Board would public comment be allowed. If it is appealed, the public will not have that opportunity.
Galvin said the board does not get to decide if they “want it or not want it” and that “they did their job.” He expressed concern that the project could be lost due to delays. Residents in the South End have been vocal about the need for a grocery market since the Pathmark closed in 2015.
Former mayoral appointee to the planning board Martin Schwartz, who abstained from the vote on the project, said when a locally designated historic property is being modified, the Planning Board does have the authority to decide if "we want it, or don't want it" — in ruling whether a new development project should be allowed within the confines of a legally designated historic property.
The judge asked Rice if he felt the application process would have to go back to full hearings if remanded back to the board, to which Rice responded he did not believe the application process would have to start from scratch.