A Legal Charade

September 7, 2018
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Opinion contributed by William Kastning |

Charade is defined as an absurd pretense intended to create a pleasant or respectable appearance.

Or to put in in terms of the most relevant vernacular, it’s an attempt “to make a silk purse out of a sow’s ear.” In the early morning of August 21 the Middletown Township Committee members collaborated to impose upon its residents an outrageous charade in the attempt to allow a poorly planned set of commercial and residential development proposals on 150 acres to move forward (on a site larger than the size of the Monmouth Mall in Eatontown).

At their meeting, the Township Committee passed the Circus Liquors Area Redevelopment Plan (CLRP) ordinance for the area formerly referred to all those in the know as Village 35. The ordinance allows development of a proposed and woefully passé commercial strip and a not-so-secret mutually agreed upon friendly “builder’s remedy,” an excessive proposal justified for affordable housing.

The missed opportunity by the Township Committee to create an enviable smart growth site is most regrettable.

I recognize the need to provide affordable housing and applaud proper efforts to create reasonable solutions, just not this one. I also recognize the right to allow a property owner to develop their holding in accordance with a pre-determined zoning regulations, or in this case, a negotiated lawsuit settlement between various parties including principally Mountain Hill Associates (owners of the property) and Middletown Township.

My intent for this letter is to voice concerns about the redevelopment process as well as the shortcomings of the proposed development.

For the sake of full disclosure, I am a non-Middletown resident member of the Middletown Open Space Preservation Committee which requires participation by the Executive Director (currently me) of Monmouth Conservation Foundation (MCF). The mission of MCF is to save open space, create parks, preserve farmland, safeguard waterways, protect wildlife and educate on conservation and the environment. I am also a planner and member of the American Institute of Certified Planners.

The adoption of the CLRP sets the stage for the development of Middletown’s second largest primarily developable area and violates all aspects of MCF’s mission, which is why I attended and spoke at the hearing against the ordinance.

What happened in the early morning of August 21 should be of grave concern to all Middletown residents.

In the Worst Weather, Help for the Homeless

Whether the property should be declared an area in need of redevelopment is open to significant conjecture. Why should the onsite productive farm comprising a large percentage of the area be deemed derelict? Why is it appropriate to cut down hundreds of trees which provide habitat for wildlife and safeguard two significant headwaters qualify for redevelopment? Plain and simple, this part of the redevelopment area is wanted by the township for 70 affordable housing units but carries with it the “baggage” of up to 330 market rate homes. What is wanted is no justification for designating the area in need of redevelopment and, hopefully, will not survive a legal challenge by Minding Middletown. There are other sites through- out the township which qualify for affordable housing and can and should be provisioned without a “builder’s remedy” necessitating four market rate units for each affordable unit.

The proposed (on-the-record) commercial component of the redevelopment area is unfortunately just another strip mall. Yes, the existing structures are in need of replacement and the commercial component of the site should provide for more retail, just not at the intensity or necessarily the mix proposed.

Earlier in the month, the planning board met to determine whether the proposed redevelopment ordinance was consistent with the township’s master plan. Minding Middletown folks and their professionals and all attendees were denied the right to interact with the board. Most likely legal, but morally inappropriate. The planning board purposefully denied public interaction.

At the Township Committee hearing, I watched and listened as individual after individual wanted to comment or ask questions and were told repeatedly by the mayor, that those were for planning board consideration, not relevant to this hearing. Under normal rezoning hearings, individuals are allowed to interact, but apparently are precluded from doing so when the rezoning is through the process creating an area in need of redevelopment.

To the mayor’s credit, he politely allowed all who wanted to speak to do so. But the mantra of the hearing was “it’s a planning board issue.”

Interestingly, the mayor called on those who signed up to speak in reverse order. The obvious purpose was to deny Minding Middletown individuals and their professionals from speaking early and communicating at the hearing’s onset the most relevant objector commentary for the benefit of the audience. Minding Middletown finally spoke in the early hours of the morning when most attendees had left. Also, by going in reverse order, the mayor subjected the objectors to significant additional professional fees.

Fort Monmouth and Amazon – Perfect Together

The mayor’s second refrain of the evening was that the Minding Middletown lawsuit prevented public interaction before the redevelopment ordinance introduction. How ridiculous is this statement that just four individuals comprising Minding Middletown would preclude public interaction by the other 3,200 residents? Nothing more than a convenient and inexcusable explanation.

The final chorus of the evening was that the underlying zoning would allow far greater development than the area being declared in need for redevelopment allowed. Perhaps true, but the approval process based on conventional zoning would entail real public input, whereas the redevelopment ordinance hearing did not.

At the hearing, I asked why the traffic study commissioned by the township wasn’t made public before this hearing. The response was that it will be released for public consumption at the planning board hearings on the residential and commercial applications. Sorry, but traffic impact from redevelopment zoning are an important consideration when addressing rezoning. I suspect the traffic issues are onerous and were intentionally kept secret. Residents were once again denied full disclosure.

I also asked that the Township Committee explain Payment In Lieu of Taxes (PILOT) and whether they intended to sanction it after adoption of the redevelopment ordinance. It is the norm to enact PILOT with redevelopment, but they committee demurred ostensibly because their intent is to use PILOT to direct most of the in lieu payments to the township coffers and substantially reduce school funding. Families with children attending public schools should take notice.

It was obvious that the Township Committee had made up their minds well before the public hearing. They were going through the motions of a public hearing only because the state statutes require it.

The entire process was a charade.

William D. Kastning, AICP Holmdel

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