In a process that took years, spanned three mayors and was led by an urban planner who just won a MacArthur “genius” award based, in part, on those efforts, the City of Newark overhauled its zoning laws in 2015.

It was the first such comprehensive revision in more than 50 years and was widely praised not only for the substance of the new zoning,  which was based upon goals of environmental justice and accountable development, but for the open, participatory process by which it was adopted

Recently, in a move that would seem to undermine the well-thought out plan embraced just two years earlier and to contradict its participatory approach, Newark amended its zoning to increase the maximum building height in part of the Ironbound. And it allegedly did so without providing nearby residents the legally required notice. 

Ordinance 17-1437, approved by a 7-to-1 vote of the Newark City Council on October 4, created a new zoning district in the Ironbound. Known as MX-3, it allows for a blend of high-density residential and commercial uses in the same building or district within a half mile of Penn Station and increases the maximum permissible building height in that area from eight stories to twenty.

The MX-3 upzoning ordinance is now the subject of a lawsuit seeking to invalidate it.

PLANewark v Municipal Council of the City of Newark, ESX-L-8631-17, filed on Nov. 27, is an action in lieu of preparative writ, a mechanism for forcing government officials to do what the law requires.

The four-count complaint alleges both substantive and procedural deficiencies.

First, MX-3 is allegedly inconsistent with Newark’s Master Plan, adopted in 2012, which serves as the regulatory framework for Newark’s land use, development, preservation, sustainability and neighborhood revitalization through the year 2025.

Newark’s Master Plan designates the area impacted by MX-3 for R-MM zoning, which allows mid-rise mixed use residential/commercial development no taller than eight stories. Carved out of an area around Penn Station and thus within walking distance of transit, the area as deemed suitable for some density but nor for high rise (up to 20 stories) buildings, as allowed in other downtown areas that have R-HM zoning.

The Planning Board allegedly proposed MX-3 for approval and adoption without making a finding on the record about whether or not it was consistent with the Master Plan. And the City Council, in passing the ordinance, allegedly failed to acknowledge that it was not consistent or to justify making changes to the zoning it had approved just two years earlier, say the plaintiffs.

The second count asserts that the MX-3 zoning violates the state Municipal Land Use Law, specifically MLUL 40:55D-62A, which mandates that zoning ordinances “be drawn with reasonable consideration to the character of each district and its peculiar suitability for particular uses and to encourage the most appropriate use of land.”

The plaintiffs say the MX-3 zoning is inconsistent with sound planning principles and has “no discernible planning reason other than to accommodate the economic interests of specific corporate and/or commercial property owners of undeveloped land within the zone.”

According to Count 3, legal notice was not provided to all property owners within 200 feet as required for a change in zone classification or boundary under MLUL 40:55d-62.1 and judicial precedent. The lack of notice renders the ordinance a nullity, in the plaintiffs’ view.

The fourth and final count accuses the Newark Planning Board of not allowing public comment at a July 24, 2017 public hearing on the ordinance, in violation of due process.

The July 24 hearing was a follow-up to one on July 6 that led to a reworking of the MX-3 zoning and it was the first time those changes were introduced to the public, who were not allowed to comment on the new version, says the complaint.

The earlier version of the MX-3 zoning would have allowed buildings as tall as 20 floors.

The Complaint further alleges that the Planning Board staff erroneously testified at a June 26  hearing that the ordinance was consistent with the Master Plan and that more than 100 residents from the neighborhood showed up at that meeting to oppose the MX-3 zoning on various grounds, including inconsistency with the Master Plan, lack of public participation and lack of proper notice.

The lead plaintiff, PLANewark (which stands for “Planning and Land-use Advocates for Newark”), is described as “an unincorporated association of local residents, architects, planners, attorneys, and other professionals living in Newark who are committed to equitable and sustainable environment, land use, and transportation planning practices in all neighborhoods throughout the City.” In pursuing those goals, PLANewark has partnered with New Jersey Appleseed and shares a website with it. NJ Appleseed Executive Director Renée Steinhagen represents PLANewark and the other plaintiffs in the lawsuit.

A number of PLANewark members live within the new MX-3 zone or within 200 feet of it and some participated in the local planning process, says the Complaint. While the MX-3 ordinance was pending, they submitted a protest petition to the City Clerk signed by nearly 100 owners of property in the area affected or who live within 200 feet.

The other plaintiffs include the Button Factory Condominium Association, its president Lisa Sanders and a trustee, Aleix Martinez.

They have named as defendants the Municipal Council, the Newark Central Planning Board and City Clerk Kenneth Louis, whose office is responsible for providing notice of hearings to property owners within 200 feet.

The lawsuit has been assigned to Judge Patrick Bartels, who became a judge in January 2017. Before that, he was a partner in Keefe Bartels, now the Keefe Law Firm, a prominent personal injury law firm in New Brunswick.

Photo at top by Paul Sableman, used through Creative Commons via Flickr.

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