A judge decides whether the Lackawanna application should be returned to the planning authority. Project leaders claim the litigation is holding back developments that will include housing, retail and a supermarket.
BY JAIMIE JULIA WINTERS
Lawyers battling the development of Lackawanna Plaza were back in court last week. Conservationists demanded that the application approved last February be sent back to the planning authority to re-examine some problems.
The judge is expected to make a decision after examining the questions with no time frame given.
After 16 controversial hearings, in which historians, supermarket and transportation experts, planners and engineers testified, developers Pinnacle and Hampshire Cos. Planned to build 154 residential units, a supermarket and 111,726 square feet of office space on the 7.5 acre site of the former Lackawanna train station was remembered in May 2019.
The developers sought relief in creating 459 parking spaces for the entire site, far fewer than the 833 required. To make room for parking for the supermarket, the plan also calls for the demolition of the mall, which has been in operation since the 1980s includes the original railway maintenance platforms.
Historians tried to get the developers to salvage all of the station’s historical elements from 1913, including the platforms, by repurposing them for the supermarket, and suggested demolishing the former Pathmark building instead.
In the arcade at the historic Lackawanna Plaza. In the 1980s, the train’s platforms were enclosed in glass to build the arcade. The developer will get rid of the platforms to make space for parking.
A month after the planning agency announced the plan, A Better Lackawanna, LLC – a group of 200 Montclair taxpayers and conservationists – and Greenwood LLC, a medical practice on neighboring Greenwood Ave. 1, filed a lawsuit against the municipality and the authority.
In their lawsuit, the group says that the approval of the planning authority did not take into account the master plan of the municipality, the monument protection ordinances and the park ordinances and is in breach of them. This is evident from court documents filed by attorney Jay Rice with the Essex County Supreme Court.
In August 2019, the judge ordered the developers to intervene.
Development, including the supermarket that is slated to be a 29,000-square-foot Lidl store, is now being held up in court.
The attorneys reassembled through Zoom on October 29, and Judge Keith E. Lynott heard an oral presentation.
The lawyer of the monument protection group argued with six points that should be reconsidered by the planning authority:
- The developer plans to build on a previously undisclosed county easement.
- The approved traffic plan, which includes left turns on Grove Street, is now illegal due to a later township ordinance.
- The public was denied the right to question changes to the plan after they were announced on the night of the board’s vote, specifically that supermarket tenant Lidl would only take 29,000 square feet from a planned 47,000 square feet;
- The historical nature of the platforms had to be further checked.
- The planning authority violated the public’s initial customization rights by restricting who could speak for how long. and
- There was a conflict of interest from a member of the planning committee who had already voted on the matter as a member of the ward council.
The County Easement is a 5,000 square foot berm where a residential home would be built. It gives the county access to the property and provides green areas for drainage. Rice asked if the contractor had contacted the county about taking over the use of the property. The developers’ attorney, Tom Trautner, said the plans had clearly outlined that the apartments would be over the area and therefore the developer was not trying to hide anything, but acknowledged that the members of the planning committee did not do much discussed it. He said they applied to the county for relief.
The traffic ordinance, passed 2½ months after the application was approved, would make left turns illegal and therefore change site maps and traffic flows, Rice said. Trautner replied that at the time the application was approved, the city had not yet passed the no-turn law and that it was therefore not applicable. He said the decision would also lie with the county since Grove Street is a county road.
Rice also pointed to the alleged conflict of interest and the refusal to vote at the last hearing by the planning committee member and councilor Robin Schlager. He said the reason had not been given by Schlager, and their refusal at that hearing had deprived the board of directors of the appointment of a deputy.
Trautner said she decided to apologize because she was asked to do so by a member of the public who mentioned an appeal. In May of the previous year, the council approved a resolution in which the planning authority was asked to examine the current renovation plans for Lackawanna “cheaply and ready for dispatch”. It was found that a supermarket is needed in the region. Trautner said her rejection was not due to any personal gain or interest in the project.
The size of the supermarket also came into play, with Rice claiming that the platforms would be sacrificed because of the supermarket’s size of 47,000 square feet and that a much smaller market at 29,000 square feet and retail tenants would take up the rest of the space. Locations, loading docks and traffic would also change. However, Trautner argued that the building’s footprint would stay the same and that there was no difference in land use laws between supermarket and retail.
The judge said the building’s historic value and preservation was the responsibility of the planning authority, while planning authority attorney Dennis Galvin reminded Rice that 80 percent of the historic items were saved with the project and the planning authority had no obligation to save these items.
Rice said that public commentary was limited to three minutes, which in a sense “muzzles the public,” and that no comment was allowed at the last hearing when the renter and the size of the supermarket were announced. Trautner said the public had 15 hearings to speak out and that the chairman of the planning committee had the right to control and limit the times for the hearings.
However, the judge questioned why the public should not be given the opportunity to get answers after the announcement of Lidl. Trautner said he did not remember any protest about not being able to speak at the last hearing.
Although Galvin designated the area as a redevelopment area, which the local council would be involved in, Rice pointed out that it is not and the property is not listed as a redevelopment area by the planning department.
Rice said that only if the application is referred back to the planning authority would public comment be allowed. If an appeal is made, the public does not have that opportunity.
Galvin said the board cannot decide whether they “want it or not” and that “they did their job”. He expressed concern that the project could be lost due to delays. Residents of the South End have spoken out in favor of a grocery market since the Pathmark closed in 2015.
Former mayor of the planning authority, Martin Schwartz, who abstained from voting on the project, said that if a locally designated historic property is changed, the planning authority has the power to decide whether “we want it or not” – at the Decide whether a new development project should be allowed within the boundaries of a legally designated historic property.
The judge asked Rice if he believed that the application process would have to revert to full hearings if he was referred back to the Chamber, to which Rice replied that he didn’t think the application process should start over.