The bombshell dropped at Tuesday's Zoning Board meeting was delivered by Marc Leibman, the attorney representing Councilman Austin Ashley against Hekemian's development of the United Water property. Citing that the changes in Hekemian's recently revised site plan application are 'substantial,' Leibman told the members of the Zoning Board to toss the current application before them and require Hekemian to submit a new one.
To support his request, Leibman said that the courts have ruled that an amended application can be treated as a new application and read the following passage from New Jersey Zoning & Land Use Administration, the book containing municipal land use law:
Where an amended application is substantially different from the original it may be treated by the board and any reviewing court as a new application. (Section 25-4, Amendment of Application)
"This is a substantially different application than what was originally filed," Leibman told the Board.
Additionally, Leibman said that the revised plans lack any information about the nature of the 24 housing units and how/if they fit into affordable housing, and include a restaurant that was not a part of the original site plan.
Referring to the incomplete nature of the application, and lack of detailed information on the proposed changes, Leibman told the Board, "You have a moving target here."
Stephen Eisdorfer, the attorney representing Hekemian, argued that the application should proceed, "We submit this is not a qualitatively different application."
Eisdorfer told the Board that despite the reduction in housing units from 221 to 24, the scope of the application has not changed--it is still an application for a mixed-use development.
"We simply downsized the residential portion," he said.
Zoning Board attorney Scott Sproviero said that in determining whether or not the revised application should be considered as a new application, the analysis must be constrained to whether or not the nature of the application has qualitatively changed what it is the applicant is asking for.
Still, Leibman pressed that there was not sufficient information for the Board to even make that determination, again questioning the restaurant and the lack of detailed information regarding the 24 housing units.
Eisdorfer said that the restaurant is no longer included in the revised plans and agreed to submit details of the housing units to the board.
Sproviero agreed that although the applicant has provided the Board with a lot of documents, the documents do not contain sufficient information.
"All we have before us is drawings," he said.
For that reason Sproviero said he had no way to determine if the proposed changes are substantial to deem a new application.
"To think that the Board can look at this and make determinations just based on the reduction in residential units without any additional information is not okay," Sproviero told Eisdorfer.
"We need more information to determine how to move forward," Sproviero concluded.
Sproviero said that in order to proceed, Eisdorfer must submit a paper by Dec. 28, summarizing the scope of the proposed changes and a synopsis of why the revised site plan should not be considered a new application.
The hearing was adjourned until Jan. 8.