HCA EXPLAINS SUIT TO STOP GATEWAY ONE TOWERS
Citizens of Hoboken and Jersey City:
The Hudson County Alliance ("HCA") is a grass roots organization of Hudson County residents that was formed to protect public health, safety and the quality of life from harmful development.
Recently, the HCA filed suit in New Jersey Superior Court to stop the construction of Gateway One Towers ("Gateway") at 101 Marshall Street in southwest Hoboken and to overturn approvals by the Hoboken Zoning Board, the North Hudson Sewerage Authority, and the Hoboken Construction Official needed to build Gateway's two 17 story towers and parking garage.
The City of Jersey City and the City Council of Hoboken joined forces with our group in this litigation by asking the court to reverse the zoning approvals and stop construction of the project.
On August 21, Superior Court Judge Arthur D'Italia denied the joint request for a stop work order and dismissed all the complaints filed, save one HCA complaint against the sewer approval.
The HCA intends to appeal the judge's decision. And, we have just learned that both Jersey City and the Hoboken City Council intend to do likewise.
Our organization filed our lawsuit July 1, 2002 in response to a project that we feel is a threat to public health and safety, where the public's right to have and participate in a lawful public zoning process was ignored. We feel that is important that you be informed about the lawsuit and its progress. We also hope that you will consider helping us to insure that our government acts in accordance with law and the public interest.
Gateway's Zoning Board approvals date back to 1998. They involve variances for more than ten violations of Hoboken's Zoning Law, including construction of 158-foot towers where only 40-foot structures are allowed and completely covering the land with buildings where only 60% coverage is permitted. The convoluted history of Gateway involves two other major decisions by the Zoning Board at the request of the developer: in 1999, the project was reduced in size to four 6-story buildings with parking beneath the structures, and in 2000, the project returned to its 1998 configuration of two 17-story structures and a separate garage.
According to HCA's complaint, none of these approvals were given legally. No notice was given to the Jersey City Clerk or Hudson County Clerk prior to any of the Zoning Board hearings, as required by law. The 1999 and 2000 site plan approvals were characterized as "interpretations": i.e. no public notice was given at all that the amendments were being considered and no formal hearings were held, as required by law.
In order for the Zoning Board to issue a variance, the developer must demonstrate that there will be no harm to the public. The public must be told about the hearings so they can present testimony about how a project may affect them. If the project presents harm to the public, this is a basis for the Zoning Board to NOT approve the variance.
For example, lack of notice to Jersey City denied residents any say on a project that would block their views of the Hudson River and could worsen flooding on Jersey City property and roads below the palisades. Recently more than 500 Jersey City residents signed a petition opposing these structures. If Jersey City had been given proper notice of the 1998 Zoning Board hearings, their opposition could have stopped Gateway's variances from being approved.
If no proper public notice is given, the Zoning Board has no jurisdiction to hear the case or to give the approvals for variances. Thus, according to the HCA complaint, the Zoning Board approvals never happened.
And without legal Zoning Board approvals, approvals given by the Sewerage Authority for the project to connect to Hoboken's sewers and the building permits issued by the Construction Official are all invalid, so that the construction of Gateway is illegal.
HCA's complaint also points out that all of the variances granted in 1998 expired in 1999 because by law they last only one year. The Zoning Board's "interpretation" in 2000 that the developers of Gateway could go back to the 1998 version of the project was therefore also illegal, since the 1998 variances had expired a year earlier.
The Judge ruled that even if the approvals were illegal, the public had 45 days after each approval to challenge it in court, and by failing to do so, the public "sat on their rights" and so lost them.
Let's follow the reasoning: Without proper notices given, the Zoning Board had no power to issue variances, and so the 1998 variances were illegal. Even if the 1998 variances were legal, they expired by 1999. So no legal variances existed on September 13, 2001 (2 days after the WTC collapsed), when the Construction Official issued a permit to build the Gateway foundation. The foundation permit was therefore illegal. But NO public notice of this permit was given other than a piece of paper posted somewhere on the work site, so the public had no way of knowing the permit was issued or that it was illegal. 45 days passed, and an unaware public did nothing. According to the Judge's reasoning, the illegal construction permit and project are now magically legalized because we the (uninformed) public "sat on our rights."
Even more troubling is that, in his ruling, the Judge ignored one other HCA complaint that was filed WITHIN the magic 45 days and so was NOT "out of time". That complaint involved the fact that the Sewerage Authority sewer hookup approval was conditioned on making "changes" to the project -- in particular raising road grades surrounding the project and building sewer ejector pits and a storm water retention system on site -- which were NOT part of any version of the Gateway project that were approved by the Zoning Board. Since the project was thus significantly different than the ones "approved" by the Zoning Board in 1998, the project should have gone BACK to the Zoning Board for new hearings and approvals.
There are very good reasons why these "changes" need to be considered by the Zoning Board. The Sewerage Authority required the "changes" to protect the residents of Gateway -- the raising of road grades would allow access to Gateway during floods (which are frequent in SW Hoboken) and the ejector pits would prevent sewerage from backing up into the lower floor dwellings during such a flood. But these "changes" are potentially very dangerous to public health and safety. Raising road grades will, in the written opinion of Hoboken's engineering consultant Schoor-DePalma, "exacerbate flooding" of the properties surrounding Gateway, and ejector pits will "surcharge the system", i.e. pump the raw sewerage out of Gateway and into the sewer where it can mix with flood waters, spill out onto the streets, or back up in neighbors' basements. Thus these "changes" which have NEVER been approved by the Zoning Board could significantly harm the public, and are a basis for REJECTING the project altogether!
The Sewerage Authority sewer hookup approvals, conditioned on these dubious "changes", requires that the project go back to the Zoning Board, which never happened, so the permit issued by the Construction Official to build beyond the foundation, issued on May 31, 2002, was illegal, since the required zoning approvals for the "changed" project were never given. In fact, neither the Sewerage Authority approval nor the May 31st building permit can be legal until AFTER the Zoning Board reconsiders and approves the "changed" project, which has never happened. Even though this part of the complaint challenged Sewerage Authority and Construction Official approvals within 45 days of their occurrence, it was never even addressed by the Judge.
In rejecting HCA's motion for a stop work order, the Judge ruled that the harm to the developers by being forced to stop work exceeds the public's harm if the building continues. But the developers are counting on the fact that the more they build, the less likely it becomes that the court will order the buildings torn down.
So here is the crux of our situation: the lower court has ruled that private interests are more important than the public interest. The public's right to have zoning and construction laws properly enforced, to have their legal right to have an input into the zoning approval process and to have their legitimate public health concerns addressed therein has been subordinated by the judge to the developers' right to protect their investments and profits, and to defy the law and trample on the public's right to have a say. If a developer can abuse the approval process and get away with it, then zoning protection in Hoboken is dead and all citizens suffer.
The HCA therefore intends to appeal Judge D'Italia's decision and to ask the Appeals Court to impose an immediate stop work order. The City of Jersey City and the Hoboken City Council also consider the construction of Gateway to be so detrimental to the safety and quality-of-life of our communities that they have joined HCA in this appeal. The appeal is scheduled to be filed by September 23rd of this year.
We need help to get the word out, so if you would like to participate in any way, including donations to the HCA legal fund, please contact us at 201-714-9376.
Eric Volpe, President
Hudson County Alliance