Dramatic Finish To Meeting On Proposed Development

Much of Thursday’s meeting, the first for developer DMH2 before the Verona Planning Board, seemed to be going in the developer’s favor. It was a sharp contrast to last March, when, after nine months of testimony, Verona’s Board of Adjustment ruled against a key variance sought by DMH2 and ended its plan to build 14 rental apartments over commercial space. The Planning Board swiftly dispatched four challenges to its jurisdiction brought by opponents of the project, with the planner who drew up Verona’s new master plan openly mocking one of the assertions. (More about that in a minute.)

Just before 10 p.m., when Planning Board Chairman William Brown was about to end the meeting, Montclair Avenue resident Jack McEvoy asked the board if he could tell them about an issue with the deed to the property. McEvoy, who has been one of the leaders of the group opposed to the development, told the board that he had spent “four hours in the vaults” in the Essex County Register’s office and had uncovered a 1920 deed that blocked the property from commercial use. DMH2 is now seeking to build 9,500 square feet of commercial space topped by just eight rental apartments.

The deed, drawn up by Arthur and Carrie Stonham when they sold what is now 200 Bloomfield Avenue to Sarah and Patrick O’Connor, reads in part: “This conveyance is made expressly subject to the restriction that the premises shall not be used for commercial or manufacturing purposes.” The covenant was reiterated in January 1923 when the O’Connors sold the property to Ruth Schlieman of  Jersey City and then expanded upon when Schlieman sold the property to Matilde Burfeind in July of that year:

…This deed of conveyance is made expressly subject to the restrictions that the said party of the second part shall not construct upon the aforesaid premises any factory or stables and that the said premises shall not be used for commercial or manufacturing purposes; …

What happens next is unclear. A deed restriction can affect the use of a property for decades after it is enacted, and case law has given the owners of land adjacent to a deed-restricted property the right to make challenges to uses on it that do not conform to the deed. There had been no testimony on the building’s title during the Board of Adjustment hearings and Alan Trembulak, the lawyer for DMH2, did not immediately rebut McEvoy’s presentation last night.

Prior to the deed revelation, the meeting had largely been a defeat of the opponents. John Dusinberre, a lawyer representing Montclair Avenue residents Lars and Kathleen Sternas, walked into a hornet’s nest when he sought to stay the meeting because of a change in opinion on the project by Tom Jacobsen, Verona’s construction official. Jacobsen had asserted that five variances were needed for the project in a July 9 letter, only to retract the need for a variance on the project’s buffer zone in a revised letter on August 20. The buffer zone variance had appeared to be critical to the project’s opponents, who had been relying on it to prevent the clear cutting of trees on the property. But Planning Board attorney Greg Mascera said that Jacobsen’s letter was only an opinion that did not affect the board’s jurisdiction.

Mascera and Jason Kasler, the professional planner who advises the board and was the author of Verona’s master plan, also rebuffed an assertion by Dusinberre and McEvoy that the substantial excavation needed to level the property made it tantamount to a quarry, which would be illegal under Verona’s zoning. “This is another argument that doesn’t resonate,” said Kasler. If the board agreed with it, he added, “that would mean that everyone in Verona who cuts their own lawn is a landscaper.” Mascera termed the challenge a “specious argument”, adding that “the law abhors absurdity”. Their opinion was seconded by Board member Lawrence Lonergan, who is a commercial real estate lawyer in private practice in New York City.

But the challenge may not be as far-fetched as the trio would have it. When it was before the Board of Adjustment, DMH2 has estimated that 30,000 cubic yards of material would need to be excavated from the site in three months of blasting. Given Verona’s topography, most of that would likely be rock and if DMH2 were to sell that rock for gravel or other uses (as quarry operators do), it could conceivably recoup its purchase price for the site. The two properties, 176 and 200 Bloomfield Avenue, had been listed for almost $500,000 combined.

The Planning Board’s next regular meeting is Thursday, September 22.