With lawsuit filed, changes to Montclair’s demolition rules may have to wait
The Montclair Historic Preservation Commission has been workshopping changes to the township’s demolition ordinance — which gives the commission the right to accept or reject teardowns of certain properties — hoping to create more straightforward application criteria.
But with ongoing litigation challenging a 2021 demolition rejection, now may not be the best time, commission member Gerald Sweeney said at a recent meeting.
The litigation is over the same application that prompted discussions on changes — regarding a couple’s plans to demolish their home after it became ridden with asbestos, and it was red-tagged by the township as uninhabitable.
The couple had told the commission — at hearings both in 2020 and 2021 — that they intended to live in the home, but in 2018, a renovation went horribly wrong. A contractor committed what homeowner Leah Meranus described as an “egregious error” that caused a water leak from the third-floor bathroom into one of their children’s closets. When the contractor removed some plaster from the wall, asbestos spread throughout the home. Pipes later burst as well. The couple hasn’t lived there since 2018, and professionals they hired told the commission they couldn't plausibly save the structure — conceding that with enough funds, anything was possible, but arguing that it wasn't realistic.
The couple was allowed the second hearing because the township’s ordinances hadn’t been explicit in laying out a timetable for appeals. But the commission shot the couple down both times — with some members saying they didn’t want to allow a demolition because of a problem the owners’ own contractors created. They also pushed the couple to provide specific estimates of costs for repair, and to have considered selling the home to someone willing to rehabilitate it, which the Meranuses said they couldn’t do in good conscience given its condition.
The couple appealed to the Montclair Zoning Board, where they were rejected again late last year. On Feb. 25, the couple filed a suit in Essex County Superior Court, seeking to overturn the Preservation Commission and Zoning Board rulings on multiple counts, including arguing that holdover members of the commission whose appointments had expired shouldn’t have been allowed to vote.
After listening to the couple’s Zoning Board hearing, Historic Preservation Commission Vice Chair Jason Hyndman said, he realized the ordinance needed more work.
“The way the ordinance is in its existing condition makes it very difficult to actually apply it in practice,” Hyndman said.
But making substantial changes to the ordinance, with ongoing litigation, may not be the best idea, Sweeney said at the April 14 meeting.
“For the most part, it’s not the best time to be changing an ordinance,” Sweeney said.
The current ordinance, passed in 2019, gives the commission the right to review applications for demolition to properties listed in the 2016 Historic Preservation Element of the township master plan and the Historic Sites Inventory, as well as some structures in historic districts and those identified as “potential” historic districts, such as the Estate Section and the Walnut Street Historic District. In all, it pertains to over 4,800 properties.
Hyndman introduced seven possible changes, a compilation of multiple members' input, at the April 14 meeting. Discussion of the changes is scheduled to continue at the next meeting on May 12.
The first proposed ordinance change is an addition to the definition of a total demolition, to distinguish it from a partial demolition. If some demolition work is proposed within two years of a previous demolition permit, the cumulative percentage of exterior walls to be torn down would be tallied, to determine whether all together the work amounts to a total demolition.
This addition was based on concerns that an applicant could get a permit to demolish a portion of a structure and then come back later to demolish another portion of the structure, until there was nothing left, all while avoiding a review for a total demolition, Hyndman said.
The second change, under the total demolition permit section, adds a clause saying that written and pictorial records of proposed buildings must be “to the satisfaction of the Historic Preservation Commission.”
This addition is the result of applicants not submitting pictorial records, Hyndman said. But the language of the change needs to be reworked, he said.
The proposed language, “to the satisfaction of the HPC,” conveys the correct intent, but may be too subjective to stand up to a legal challenge, he said.
Providing a checklist of requirements for what is needed to meet the satisfaction of the commission may be a better idea for the ordinance, he said.
The third change, also under the total demolition permit section, requires applicants to provide a cost estimate for demolition.
The next two changes involve restructuring of review processes, creating two-part tests for applications seeking total demolition or removal and relocation. The change aims to simplify the expectations for applicants — the current ordinance includes many different criteria and different items that apply at different times, Hyndman said.
Under the two-part test, the commission would be asked to consider first whether a structure’s historic characteristics warrant preservation, and if preservation of the structure would not be an undue hardship for the owner.
For removal and relocation, the two-part test again asks if the structure’s historic characteristics warrants preservation and then asks if moving the structure is technically feasible or if it would pose a substantial negative impact to the site, its current locations or the proposed location.
The sixth change requires that applicants arrange site access for the township and its contracted professionals as needed so they can complete necessary reviews.
The final change outlines instructions for noticing hearings, echoing language found elsewhere in the ordinance.
Commission members will continue to look over the proposed changes, with comments due back to Hyndman by their next meeting on May 12.
“The tighter and the more objective it is, the better,” interim Township attorney Paul Burr. “Then we get less challenges, less litigation and the applicants know exactly what they need to do.”