The Montclair Zoning Board has rejected a couple’s appeal of the Historic Preservation Commission's denial of a demolition permit for their home, which they say is riddled with asbestos and is not financially feasible to remediate. 

On Wednesday, Dec. 8, after a three-and-half hour hearing, the Zoning Board voted 5-2 that the owners of 109 Union St. did not meet their burden of proof that demolition should be granted. 

The couple’s insurance company paid out $700,000 for asbestos containment and abatement to take down the walls and pull up floors, which were contaminated, owner Leah Meranus said. But the home is still testing for high levels of asbestos and the insurance company has since dropped the Meranuses and remediation has stopped, she said. 

Meranus had told the Historic Preservation Commission on Sept. 23 that she and her husband bought the house in 2017 with the intention of raising their family in it, but in 2019 renovations to fix a bathroom leak led to asbestos being spread throughout the home. The couple’s attorney, Rich McMahon, said the home is now uninhabitable and can not be remediated. 

In 2020, the couple made the first request for demolition, after Montclair in 2019 passed an ordinance giving the commission authority to decide whether certain structures deemed to have historic significance can be demolished.

But due to what then-Township and Planning Board Attorney Ira Karasick said was “confusion with scheduling and the process,” the couple did not show up for the final hearing and that request was automatically denied. A 20-day appeal limit wasn’t stated in the township’s demolition ordinance, and so the couple missed that deadline to appeal that denial, McMahon said. 

But the couple was denied their application again in September in a tie vote by the Historic Preservation Commission, and then filed an appeal with the Zoning Board of Adjustment.

The demolition ordinance instructs the Historic Preservation Commission to assess factors including the structural soundness of a building, the economic feasibility of restoring or rehabilitating it, the threat to public health and safety because of its deterioration or disrepair and the technological feasibility of rehabilitation.

Worries over asbestos, cost

While some members of the Historic Preservation Commission said they believed remediation and encapsulation of the asbestos is feasible, McMahon said encapsulation is only a temporary measure, because there’s contraction with heat and cold and the encapsulation wears out. Any “drilling” could also release asbestos, he said.

At the Dec. 8 meeting, Zoning Board members voiced concerns with the demolition and whether it could cause a threat to the neighborhood. There are procedures for demolition of asbestos that licensed contractors use that would cost $25,000 to $50,000. 

Zoning Board Chairman Bill Harrison asked for the costs of demolishing the home and rebuilding on the property, as compared to rehabilitation. Historic Preservation Commission Vice Chairman Jason Hyman, as a condition for his vote to allow for the demolition, had asked that the insurance financials be submitted. But since the demolition was denied, the couple has not released that information. 

Zoning Board members also had problems with the couple not providing insurance payoff information, a rundown of costs spent on remediation and an estimate of what it would cost to fully remediate the building.

At the Historic Preservation Commission hearing, the couple’s structural engineer, Paul Beck of PBS Engineering, said that because the exterior facades and studs were built on top of the subfloor, the exterior walls would have to be lifted and shored up to get to the subfloors. When asked if it could be done, Beck replied that “anything can be done” but that although he could not supply an exact cost, the economics of full remediation would be cost-prohibitive. At the Dec. 8 Zoning Board Hearing, McMahon said that remediation would cost more than the value of the home and property at $1.4 million, but did not give an amount. 

“It’s not economically feasible,” McMahon said.

Zoning Board member Jerry Simon asked if the Historic Preservation Commission has a formula for the cost of remediation limits. “When is enough is enough?” he asked about the $700,000 the couple said they spent on remediation, which is still not complete.

Historic Preservation Commission Chairwoman Kathleen Bennett, who spoke on behalf of the board at the zoning meeting, said the criteria for demolition are judged on a case-by-case basis, not on a formula, and that estimated costs were never provided by the couple anyway. 

The property is located within the First Residential Historic District, a New Jersey Register of Historic Places district. The district contains about 240 structures built between 1740 and 1932. Since the demolition law passed, the commission reviews all requests for demolitions of properties located in historic districts, as well as some other properties, such as those individually eligible for landmark designations.

‘Egregious error’

At the Sept. 23 Historic Preservation Commission meeting, Meranus told the commission that in 2018 the couple began renovating the home. In the course of the renovations, their contractor committed an “egregious error” that caused a water leak from the third floor bathroom into one of their children’s closets, she said.

The contractor removed some of the plaster walls, which contained asbestos, and set up fans to dry out the walls, Meranus said. When the contractor did so, asbestos spread throughout the home, Scott Higgins, owner of ABS Environmental Service told the commission at that meeting. After environmental testing, Higgins advised the couple to vacate the home. The family has not lived in the home since the end of 2018, and has paid the $38,700 annual taxes, Meranus said.

The family moved six times, spent 17 months going back and forth with its insurance company trying to remediate the property, hiring its own remediator, Meranus said. During that time, two more pipes burst, requiring further interior removal, which has resulted in the house basically being left as a shell, she said. Their engineer and Higgins told the family there was nothing more they could do, and that’s when they filed for demolition, she said.

According to the demolition ordinance, the applicant is expected to provide written documentation of good-faith attempts to sell the building at at an amount that’s reasonable and comparable to recent sales, or to offer it without charge to purchasers willing to move the building to another location and preserve, rehabilitate, relocate, or restore the building. 

But McMahon said it would be near-impossible to move an asbestos-ridden building “unless they wore hazmat suits,” and said that due to its current condition would not sell anywhere near the $1.4 million that they paid for it. The owners had testified that they wanted to live on Union Street on their property, and didn’t want to sell.

‘It’s going to be an abandoned building’

The couple’s intention is to build a single-family home consistent with the historic nature and zoning of the neighborhood, McMahon said. Because the couple has still not been granted demolition approval, they have not hired an architect to design the building, he said. 

“It's unconstitutional. You are taking their property without any just cause. If you don’t pass this tonight, it's going to be an abandoned building,” McMahon said. 

At the charge of the planning department, Suburban Consulting Engineers conducted an inspection on Nov. 2 to observe the structural integrity of the dwelling and the impacts of the asbestos fiber damage.

Suburban’s report said that “If the high-efficiency particulate air (HEPA) vacuum used to remove all the fibers was unsuccessful in removing all the asbestos material from the open seams, joints and grooves of the structural members, it would be a monumental undertaking to open and clean all of these crevasses within the structure.

“The entire building would require temporary shoring while the framing is removed, cleaned and then replaced while employing proper abatement procedures. If asbestos fibers are behind the exterior wall studs, this situation would be nearly impossible to address without the removal of the existing siding and stucco so the underlayment can be properly reattached after abatement is complete.” 

Suburban’s president, Daren Phil, read from the report at the Dec. 8 zoning meeting, saying while he believes air samples can be taken in the house to prove that the air meets the current standards, and that renovation work can be completed that will seal any remaining asbestos within the existing framing, any damage or construction activity that may occur in the future will result in disturbance of the encapsulated fibers and any renovation work or structural modifications could easily dislodge any remaining fibers, potentially causing them to become airborne.

He noted that according to the Occupational Safety and Health Administration there is no “safe” level of asbestos exposure for any type of asbestos fiber, so he said modifications to the building would be of concern for the safety of the workers.

The owners had provided the Historic Preservation Commission with letters from two contractors, Brinton Brosius and Scandic Builders, which both said they would not feel safe working in the structure and therefore would not take on the renovation. 

By sheetrocking walls and ceilings and installing floor planking the asbestos would become encapsulated, Phil said, but he also voiced concerns with saving the facade if the exterior walls would have to be lifted and shored up to get to the subfloors.

Jay Church and John Caulfield voted to approve the permit for demolition, while Jerry Simon, William Harrison, Joseph Fleischer, Jonathan Moore, John McCullough voted no.

After the meeting, McMahon said his clients are all for preservation, but there needs to be a balance “which, in this unique case, has unfortunately tipped towards preservation over practicality and a family’s safety. It’s sad but HPC has effectively taken their property from them. They are now effectively trapped with a house they can’t live in and can’t be made safe. We are currently weighing their options but they are clearly stuck between the proverbial rock and a hard place.”