Over the past year and a half, the Baraka administration has pushed for an amendment to the Newark Zoning and Land Use Regulations (NZLUR) primarily to create a new MX-3 zone in the Ironbound neighborhood, directly adjacent to Newark Penn Station. This new zone calls for taller, denser buildings, most of which would require compliance with the nascent Inclusionary Zoning Ordinance. That means most large buildings in the new zone would need to set aside a minimum of 20 percent of the total number of residential units for Affordable Housing, as defined by the State of New Jersey.
On the surface, this is a noble idea and can serve to benefit the City of Newark for decades to come. Considering that a large portion of the land in question is currently underutilized as surface parking, vacant, or small scale industrial uses, it is clear something needs to change in this area. Penn Station is the busiest train station in New Jersey, after all, and Newark deserves a grade A transit-oriented neighborhood. Unfortunately, the current draft of the ordinance is short-sighted and riddled with errors and vague language. It simply is not ready to become law. Below are five reasons why the ordinance should not pass as it exists today.
1. MX-3 will make housing less affordable in the Ironbound
Housing markets generally work on a regional scale; think NYC metro area. The more housing you build, the cheaper overall housing becomes throughout the region. However, latent demand is so intense in the New York City metro area that simple supply and demand economics is irrelevant at the neighborhood scale. Housing has been built denser and faster than anytime in history resulting in higher and higher housing prices immediately adjacent to new development. Several studies have confirmed that this often results in displacement of nearby residents. We only need to look at Jersey City or Hoboken to see this playing out. Newark and the Ironbound will succumb to the same market forces over time if there is no attempt to build affordable housing.
It’s no question that Newark needs to build more housing next to Penn Station where there is high demand, but this ordinance does nothing to preserve affordability in the neighborhood. The city’s Inclusionary Zoning Ordinance requires affordable housing in the future MX-3 zone, but with a large loophole that allows developers to pay a nominal fee for each unit not built on site. If given the choice, a for-profit developer will always choose this option because the fee associated with each unit is much less than the cost of actually constructing a unit. The City has already shown a willingness to accept such payments in lieu thus far. It remains to be seen if on-site construction will be enforced bin the most critical areas (i.e. next to a busy train station).
All of this means that it’s likely no affordable housing will be built in the MX-3 zone where it is most critical for an inclusive city. This in turn will result in higher property taxes and higher rents for neighborhood residents, as has happened elsewhere in Northern New Jersey.
To fix this, the Council can require as a condition of approval for large buildings that affordable housing must be built on site. This is called a “Conditional Use Standard” which is applied to any “use” listed as ‘C’ for Conditional in any zone. The thinking is, in exchange for building higher or denser, developers should be required to provide affordable housing. We would suggest all High Rise Residential buildings be listed with a ‘C’ and include specific provisions for the MX-3 zone in the Conditional Use Standards (Chapter 6).
2. MX-3 Encourages overdevelopment without infrastructure improvements
The area slated for the MX-3 zone already suffers from routine flooding, sewage backup, and poor air quality. This is all true while a large portion of the land remains unbuilt. Once new buildings are developed, all of these problems will be worse. There will be less open land to absorb rainwater, more demand on the public sewer and water systems, and less vegetation to absorb air pollutants.
To the City’s credit, the draft MX-3 ordinance does include some “sustainability standards” for all new buildings in the zone, but this does not address the most critical impacts of overdevelopment on Newark’s combined storm sewer system. The City should introduce a companion ordinance that exacts impact fees or requires private investment in the public infrastructure to mitigate the worst impacts of these future developments. The City has indicated it may be willing to do so, but so far this has been unaddressed.
3. Text is poorly written and susceptible to abuse
Much of the language in the draft ordinance is unnecessarily complex and confusing. This will likely result in different interpretations of key provisions leading to unintentional results. For example, it is unclear whether certain tall buildings, such as hotels or office buildings, would be considered the “Detached Commercial” building type or the overly verbose “Ground floor commercial, including retail, office or service use with commercial or residential above” building type. It’s important to note that there are no restrictions on building height for “Detached Commercial” buildings, meaning towers exceeding 20 stories could feasibly be built in this area. This is contrary to the City’s statements that all buildings within the zone are limited to 12 stories (the text now reads “145 feet”). At the very least, this discrepancy should be clarified.
Other provisions are not sufficiently defined. For example, the open space requirement under the “sustainability standards for MX-3” is too flexible. An owner could conceivably provide a covered driveway or paved area and comply with this definition. We have seen such a space on an application that was previously approved. Surely this is not the intention of this requirement. The City needs to spend more time on this ordinance to ensure that text cannot be misinterpreted.
4. The process is opaque, rushed, and non-democratic
The original MX-3 ordinance process in 2017 was fraught with poor outreach and weak community engagement, if any. It took just over 3 months to introduce and pass the ordinance after much community resistance and only one, heated, community meeting. Proper notice wasn’t given to residents The quick turnaround resulted in much confusion over which version of the legislation was being brought to a vote, and some councilmembers and planning board members seemed unfamiliar with the provisions set within. Eventually, that version of the ordinance was struck down in court, in part due to the improper response by the City.
When the City of Newark restarted the process in late November of 2018, it did so with the expectation that the ordinance would pass in less than one month, before an artificial deadline at the end of 2018. The deadline was later extend by about one week. That being said, the administration made an effort to host several public meetings to help inform the community about what was coming. Those meetings produced substantive feedback about the organization of the text, specific planning requirements for different building types, and a concern for public infrastructure.
Since receiving comments from community stakeholders, virtually none of it has been incorporated into the draft text. Instead, the new draft has eliminated or reduced required setbacks, removed a 12-story limit, and continues to permit buildings in excess of 12 stories – this is all contrary to the public feedback. Through and through, the remaining portion of the ordinance is almost exactly the same despite the deficiencies that have been pointed out during the lawsuit. It begs the question, who is this benefitting and why has the process been so divisive? The community clearly wants changes to the draft, and they are willing to compromise – several people suggested height limits of 10 stories, well above what is existing and greater than what is currently allowed. Still, the City hasn’t budged and they haven’t given clear reasons as to why such a zone change is needed. Such a large change to the zoning requires more transparent engagement, more time, and better planning. Without those things, we’re left with subpar legislation that will do more harm than good and likely benefit only a privileged few.
5. Sets a bad precedent
This zoning amendment represents the first major adjust to Newark’s brand new zoning ordinance. Passed in 2015 and based on a Master Plan from 2012, the current ordinance is less than 4 years old. That ordinance is derived from a thorough public process which sets requirements for all zones throughout Newark, including the R-5 / future MX-3 zone. By amending the ordinance so soon with little community support, and little explanation, the City is setting a precedent for all future zoning changes. That means any new administration can simply change the text as it sees fit without regard to those who will be most impacted by such changes.
At the very least, the administration should incorporate into the text some of the very specific and relevant comments given by the public. Perhaps this will restore some good will and show future administrations that you need the support of the community being affected.