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The Twin Oaks Decision
by Joe Renna

the challenge of the zoning board
Twin Oaks Development, LLc presented a proposal to the Township of Cranford to construct 40 town house dwelling units in a 12 lot area. The proposal went to the Development Review Committee for consideration and evaluation. The Review committee consisted of the township's construction official, engineer, planning and zoning official and a citizen representative. The project also was presented to the township's environmental commission, engineering, police and fire departments, all of which wrote a report containing the results of the their evaluation of the proposal. The findings of the review committee, together with the reports were sent to the Board of Adjusters.

The presentation documented the specification of the plan that violated the ordinance. It was the option of the developer to seek variances for each violation. The zoning board is now charged with deciding if it would be appropriate to grant the variances. They will held public hearings in compliance with the New Jersey Open Public Meetings Law, which is commonly referred to as the "Sunshine Law". This law establishes the right of all citizens to have adequate advance notice of all public meetings and the right to attend meetings at which any business affecting the public is discussed or acted upon. ­ N.J.S.A. 10:4-6 to 10:4-2 4

Like most law there is some grey area that is open to interpretation, adaptation and plain common sense. The issue that faces the board is to define what "appropriate" is. At the very least the plan must abide by the laws concerning health and safety. The law will set the parameters at the most minimal level. The municipality can define particulars within those parameters, and it has done so in the zoning ordinance. Recommendations by the fire and police departments may also be narrower than the state requirements. But considerations do not stop there. There are the economic, esthetic, historic, political and personal concerns. These may or may not be defined. The one thing that all these concerns have in common is that they all represent the desires of the public. The actions of public officials should be in harmony with what is best for the citizen. The wishes of the public should hold the most weight. It is the public, the taxpayers and voters, who elect the government officials. Legislation is passed, including the zoning ordinance, through the representative of the public. The zoning ordinance is the wish of the government and the people.

The zoning board of adjustment will have to answer to the public if the wishes of the developer override the wishes of the people. In granting the developer a variance will the integrity of the master plan and zoning ordinance be jeopardized? Will a precedent be set that will lead to the granting of future variances? Will the negative impact on the community outweigh the benefits?

The twin oaks development request
The application for the construction of the townhouses was forwarded to the Board of Adjustment from the Development Review Committee. Included in their analysis was a schedule of variances. the following list gives the statute number, type of variance and a brief description:5

1. 136-32.A(1). Use Regulations.
The property is located in an R-5 zone where town houses are a conditional use. The proposal does not meet the conditions of the ordinance. Thus, a variance pursuant to the provisions of N.J.S.A. 40:55D-70(d)(3) is required.
2. 136-33.D(1)(c). Tract Density.
The zoning ordinance permits tract density of one unit for each 5,000 square feet of land area for total of 28 units. Applicant proposes one unit for each 3,346.70 square feet for a total of 40 units.

3. 136-33D(2)(c). Front Set Back.
The zoning ordinance requires an average front set back of 25 feet and a minimum set back of 20 feet. The applicant proposes an average front set back of 21.75 feet with a minimum set back of 20 feet.

4. 136-33D(3)(b)(2). Minimum Distance to Minor Arterial Road.
The zoning ordinance requires a minimum distance to a minor arterial road of 35 feet. The subject property is 27.94 feet to the nearest minor arterial street.

5. 136-33D(3)(b)(2). Minimum Distance to Adjoining Zone.
The zoning ordinance requires a minimum distance to an adjoining zone of 35 feet. The subject property is 25 feet from the adjoining zone.

6. 133-33D(3)(b)(2). Minimum Set Back building to Building.
The zoning ordinance requires 30 feet distance between buildings. The proposal calls for 25 feet.

7. 136.30.11. Minimum Building Height.
The zoning ordinance permits structures to a minimum of two and one half stories or 30 feet. The subject property is three stories and 34.8 feet.

Reports and recommendations
In addition to the list of seven variances being sought by the Twin Oaks Development Company the Development Review Committee submitted a report of their recommendations. Included in that report was a the recommendation for more parking. The report states that parking is at a minimum with no visitor parking. Additional parking would be necessary and the street width is not sufficient to support additional parking. 6
The committee observed that even when the landscaping is mature that it will provide very little screening. A different type of planting should be examined. The project will also require sidewalks and continuous curbs.

The Cranford Environmental Commission registered their concerns that the development will exacerbate the flooding problems that Cranford experiences. The development is "Inconsistent with the Township's flood control efforts and community character."7 Their report also stated that their research shows that residential tax rateables would not cover the cost of municipal services, community services and schools.

The Cranford Fire Department was "extremely concerned" that density of the development can hinder fire department access. The letter stated that the development was too dense for the area. The recommendation by the Fire Department was for the Zoning Board not to grant permits that would allow building more units then is presently allowed. The fire Department has the authority to designate fire lanes to insure access in the event of an emergency. They also raised points concerning the lack of sufficient parking and the need for additional hydrants. The mains in the area are old and do not have enough water for fighting fires in these structures. The water mains must upgraded to allow 1,250 gallons per minute at hydrants. 8
The Township Engineer made seven critical points about the development. The engineer requires modifications and a stormwater management plan. Recommendations included installing storm sewers, outflow control structures and curbing. The engineer also mentioned that there should be sidewalks installed.

adding fuel to the fire.

Concerned citizens stepped up to voice their opinion on the planned development. So far the development seemed obtrusive. It demanded attention and got it. The zoning board had recently approved variances in the construction of three separate buildings much to the dismay of many residents. A handful of concerned citizens were determine to stop the fourth one from happening. They mounted an opposition in order to stop the development. They were in acceptance of a development in tune with the ordinance but they felt that this development was an extreme departure from the master plan and building code.
Density is the main issue of contention in the Twin Oaks Development. The applicants are looking to increase the density allotment by 50%. This is the catalyst that is giving rise to all other issues of concern and contention, beginning with safety and ending with economy. There are many arguments that the public made in their opposition to the development in their petition to the zoning board to not grant the variances.

There are so many that it is impossible to list all of them, for one aspect of the development may lead to multiple problems that compound as the model unfolds. For instance, the lack of sufficient frontage to the property would put a car parked in a driveway in the path of a side walk. This makes it necessary for adults and children to have to walk in the street. This leads to safety issues on the road and egress during emergencies. The Review committee has recommended sidewalks be included in the plan but with insufficient frontage the point is mute.

Some of the main points that the public has made are as follows. They echo what the application for variance requests and list some of the negative impact that will caused by the development as it stands.

· 40 units are being proposed in an area zoned for 26. This is an issue of density that will lead to most of the problems identified.
· 3 stories structure exceeds two code requirements. There are a few concerns with this variance in that there is no living quarters allows in the neighboring are. To allow third floor living space in this development would set a precedent for existing houses to renovate to gain a third floor living space or for future new building to also seek third floor living accommodations. The density of the area would dramatically change. The three story design also exceeds the height limit of the building code and will also set unwelcomed precedents.

· Infrastructure, as it exists can not support the increase of people that will be introduced to the area. Sewage, water and flooding were those mentioned in the Development review Commission report. Other concerns that rose during the public hearing concerned changes to streets and roads.
· The landscaping and screening that was proposed is inefficient. This was a point that was also raised by the review committee. Cranford is a scenic, suburban setting with plenty of green to compliment the grand old houses. This development flies in the face of the towns efforts to preserve its visual identity. This development would be located at one of the gateways into the community.

· The parking problem that was identified by the fire department will be compounded by the fact that the space allotted for the garage on the architectural plans is at a minimum of a garage. There is no standard that dictates the minimum size, but a study done by a member of the public revealed that the space is not adequate for parking with convenience. The tendency for home owners to use their garages as storage or work space throw any calculation for parking out the window. One car in a garage and a second in the driveway is not a desired scenario. Access to the garage kept car will require excessive jockeying. The only alternative is for residents to seek parking opportunities on the streets and in the adjoining neighborhoods.

· The streets surrounding the development and the two that will run through it are not adequate to handle the increase in traffic flow, they are not wide enough to accommodate the parking and are not conducive to emergency vehicle movement. Accessibility is limited further when cars are pulling in or out of driveways and is especially dangerous for people who are forced to use the street to walk around the compound.

· The lot size of each unit is too small. This issue points to problems with density. It is the reason for the inadequate front and back set backs and the below minimum distance required between building. It is also the reason why there is inadequate distance to the adjoining zone and minor arterial road.
The introduction of of 40 families into this space is a large part of the problem. Up to this point the concerns have been ones of building code. But those codes don't exist in a vacuum. The nature of the law is to control the quality of life of the citizens of Cranford. Overdeveloping jeopardizes every aspect of a towns makeup.

The concerned citizens brought up the burden that 40 families would have on the township. It would be an impact many consider detrimental. The burden on the school system is enough to make one pause. The Cranford Board of Education estimated that the development would introduce 80 children into the school system. The cost to educate a child must be shared by the entire taxpaying community. The possibility that schools may have to expand to accommodate such an influx only compounds the problem.

The additional services that are required from other departments of the township must also be considered, most notably Fire, Police, EMS and public works. There were no comprehensive cost analysis done on be behalf of the township. It took a member of the public to solicit a report from the board of education.

It is the contention of the citizens that other necessary analysis was either not done of done inadequately. The burden to expose problems and hidden inefficiencies in the developer's plan has fallen squarely on the shoulders of the pubic.

The appeals process

Once the Cranford Review Board rejected the Twin Oaks proposal on face value, Twin Oaks Realty had the opportunity to appeal the rejection and request variances to the zoning ordinance in order to get a permit to build.

Twin Oaks had the opportunity to present their proposal to the zoning board through a series of public hearings. The developer had to present, in detail, every aspect of development to the satisfaction of the board. The developer needed expert testimony together with testimony from its development team. The lineup of individuals that presented on behalf of the developer included the architect, planner, real estate professional and traffic consultant,
The people brought to the hearing to give presentations on behalf of the developer were also questioned by the members of the board. The public was also invited to ask question that are in particular concern to the presenter's area of expertise. Officials representing the township also testified and answed questions form the board.

The hearing occurred over the course of a year. Because of time restraints, each session consisted of a presentation by one individual followed by questions from the board and then the public. Most times the meeting would last up to the limit for the night and would have to continue the next time around. On most occasions this limited or eliminated the public comment portion of the hearing.

There was a series of at least seven meetings. I say at least because the hearings are still open and the decision has not been made by the zoning board. The final presentation has been made and another meeting is being scheduled to continue the testimony and questioning of the township's planner and zoning officer. Upon completion of his testimony the public will have the opportunity to speak and the zoning board would start the rigorous task of weighing all the testimony and making a decision.

issues of contention

It is not so cut and dry as the public would like the zoning board to think. Under the Administrative Procedures Act, the decision that the board must make can not be arbitrary or capricious.

The burden is on the developer to convince the zoning board that the proposed development is the best use for the land in question and that the development is in harmony with the towns master plan. The zoning board is in the position to do what is best for the town and its residence. This includes the environment, the economy, safety and health concerns and quality of life issues. It is a daunting challenge and so it should be. A development of this magnitude has lasting repercussions. It may damage the aspects of the town, that the zoning board are charged to protect, beyond repair.

Admittedly the developer is proposing this project as a commercial venture. They stands to gross almost $13 million from the sale of the townhouses. Their argument that they should be allowed to build was made aggressively, but, in this author's opinion, not always forthright. The zoning board must trust that the information being presented is accurate and untainted. It is not the place of the zoning board to challenge the truthfulness of the material presented unless it it revealed as such through testimony. The burden then fell upon the public to challenge the claims of the developer. It is an exercise in civil duty. It is time consuming, costly and stressful.

The public would not have been so concerned if there wasn't an already heightened concern for overdevelopment. There has been a trend in this type of development that resulted in negative effects on other communities and this was a threat now to Cranford. The stealth nature of the developer sent a red flare of warning to the community. As mentioned earlier, in the case of soliciting a report from the Board of Education, it was the public that caused the developer to address issues that would not have addressed. Due to the diligence of an astute public, the developer was forced to acknowledge inconsistencies in their testimony and reveal information they would have otherwise held back.

An example this, and a scary one at that, was the architect stating that "he gave no consideration to emergency egress for the residents of the town houses." Once revealed the issue was brought to the attention of the board and the architect then revised his drawing with that issue being addressed.
The drawing went through many redesigns. Each meeting exposed further flaws in the design and inaccuracies in the testimony. Each meeting presented new problems and a heavier burden on the public. By the end of their testimony the developer reduced the total number of units he is proposing to build to 36. He contends that this is the lowest number of units that they can possibly build or they would not go forward with the development.

This admission actually make it easier for the zoning board to make a decision. It is conceivable that another developer can come in with a plan that fits the objectives off the master plan and that the public will embrace. The zoning board made a point that the profits reaped by of the developer carries no weight in their decision. But it is only profit that the developer is interested in.

Choosing to grant variances for a development has a reciprocal effect on the community. The land taken in development is no longer available. The possibility that such a limited resource be used inadequately is most damaging. Bad development represents missed opportunity for good land use.
There are ways that towns can take a proactive approach to development. Everything from incentive zoning to marketing and recruitment. The trend in towns with means development has taken a turn in which they have more control on what is happening. Cranford does this already in their central business district. They designated it a Special Improvement District and are actively involved in its revitalization. It would not be a stretch to apply that same principle to the tract of land in question.

In the present system the developer is is forcing the hand of the municipality. There is no need for the town to waiver from its zoning ordinance unless there is a clear, advantage to the community that is beyond any doubt. .

Expert testimony

The Developers for Twin Oaks paraded a team of experts to present the attributes of the development as the greatest boon to Cranford since the Mill. The facts as presented by the experts were so wonderful that one would wonder why Cranford wouldn't knock down all its housing stock and put in town houses. The Real estate expert said he did an analysis and said the benefits overwhelmingly outweighed the negatives. When asked to give one example of an aspect of the development that may have a negative impact on the community he said, "He didn't find any." He was asked again because it was puzzling to the public what he based his analysis on if everything he saw had a positive impact. Throughout the months of hearings, the public and municipal agencies, presented dozens of items that were concived as negative. The real estate expert couldn't visualize not even one of them. It defies the principals of doing an analysis. To suggest that there is no opposing opinion or interpretation of the data used in the analysis is at the very least disingenuous at worse deceitful.

Every expert that testified on behalf of the developer put such an extreme spin on their facts and opinions that they lost any hint of credibility in the eyes of the public present at the meeting. When asked probing questions by the zoning board the most common answer shared by all the experts was, "I don't know." The avoidance of answering the questions was either an attempt not to admit to a negative fact or that they were not the experts that they claim they were.

There was an expert study done about the impact that the development would have on area traffic. The report stated that the 36, three bedroom townhouses would only produce 2 additional cars during morning rush hour. There was a host of qualifiers that were twisted in the study that resulted in the number that the developer wanted.

The traffic study is so out of touch with reality that the expert did not know that the freight train line that runs less than 100 yards away may be reactivated before the townhouses are built. How could the developer and planners complete any accurate analysis without any consideration of a freight train is in such close proximity of the development?

The developer's findings of what impact the Twin Oaks will have on the School system of Cranford was made without conultation with the Cranford Board of Education. It took a concerned citizen to request an impact report from the Board of Ed and of course the discrepancy between the two reports were like night and day. The developer claims that only 2 students would be produced from the development, the board of ed had that number closer to 80.

The attorney for the developer made a point that "Twin Oaks Realty is acting on the wishes of the elected officials." This is statement is ludicrous. Our elected officials developed a code for development. Twin Oaks is looking for variances. The wishes of out elected officials are represented in the code.
Statements like the townhouses will be filled with "empty nesters" is baseless, yet the experts claim it. The extent of the real estate expert's research was asking a tenant walking her dog outside the North Avenue condo complex how many children does the complex have. Her answer was "in all the years she lived there she only saw two." This is the type of testimony the zoning board was receiving. How could they possibly make a decision when the facts that are presented are so obscured.

The architect of the development boasted of the work he did in Rahway that was "very similar to what he is doing in Cranford." Between the time he made that statement and the following meeting concerned citizens looked into the Essex Street development in Rahway and found it did not fulfill the benefits that it promised. When confronted with photographs and the public's observations at the next meeting the architect stated that it was a long time ago, ten years, and he did not remember the details of the project and it should not be compared to Twin Oaks. The only reason the public presented their comparisons were because they were first presented to the board by the architect. The public would not have known that he worked on the Rahway site unless he said so first , Now he wants everyone to believe he did not make the comparison.

The comparisons that were made between Twin Oaks and the senior housing center is just as dubious. The townhouses are three story walk ups with three bed rooms. The developer wants the zoning board to believe that senior citizens are going to pay $300,000 for a townhouse that size with that many stairs. The experts were asked about the size of the apartments at the senior center and he stated that he did not go in the complex. He was also asked if he knew that the facility had elevators and that the town houses didn't.

Comparisons was a key to the expert's testimony but when asked if the study used townhouses of equal size to Twin Oaks, the experts said they "did not know". The term town house can refer to anything from a studio to a multi bedroom unit. This statement voids any statistical data presented.
The public doesn't even have to counter with their own experts. There are enough contradictions in the developer's presentation that the decision to reject their testimony should be easy. If expert testimony is peppered with answers like "I don't know", who else will know? The experts say that the surrounding properties would have no effect on the value of the townhouses and in the very next breath claims that the town houses will improve property values of the surrounding area. A total contradiction, Typical.

Cranford could do better

The bottom line of this Twin Oaks development is that the Township of Cranford has the final say in how development is going to be done. The benefits should overwhelmingly favor the township and improve the quality of life for its citizens. Developers can build within the parameters of the zoning ordinance but should not be granted variances solely on the fact that they are applying for them.

It seems that the zoning board is muscled into accepting this proposal and the public is being bullied when they speak up against it. If this inferior development is build it would not only degrade the housing stock in the community but the town also loses the opportunity to develop the property in a more favorable way. Lost opportunity is more costly than hasty development.

The zoning board can stop this and any development that can result in irreparable effects on the economy, ecology and culture of the township. The public supports the Zoning Board in upholding the statutes dictated by the town ordinances. The public supports good development and not building driven by greed.

Cranford can do much better attracting a developer that will fulfill the desires of the Township and public. I am sure that there will be no problem attracting a developer that will love to work on a project that has the community's support. Twin Oaks is looking to make their $13 million and walk away. Lets see if there is a developer that is willing to make only $8 million profit. They won't be too hard to find.
Public participation in all aspects of government is what makes our democracy great.