Citizens of Hoboken and Jersey City:
The Hudson County Alliance (“HCA”) is a grass roots organization of Hudson County residents formed to protect public health, safety and quality of life from harmful development.
This letter continues last week’s discussion of why the HCA, the City of Jersey City, and the Hoboken City Council filed suit to stop the construction of Gateway One, two 17 story towers and a parking garage located at 101 Marshall Street in southwest Hoboken.
Last week we described why none of the zoning approvals and variances given to build Gateway are valid. And without valid zoning approvals, the necessary sewer hookup approvals and building permits are all invalid, so that the construction of Gateway is illegal.
On August 21, Superior Court Judge Arthur D’Italia denied the joint request for a stop work order and dismissed all but one of the complaints filed, ruling that even if the approvals were invalid, 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.
The HCA, Jersey City, and the Hoboken City Council all intend to appeal the judge’s decision. Here’s why:
(1.) If the judge’s reasoning is correct, then the Construction Official can overrule the Zoning Law merely by issuing an invalid building permit. Here’s how this works: As explained above, no valid zoning variances existed on 09/13/01 when the Construction Official issued a permit to build the Gateway foundation. The foundation permit was therefore invalid. The only public notice of this permit was posted on the Gateway site, so the public had no way of knowing the permit was issued or that it was invalid. 45 days passed, and an unaware public did nothing. Presto! — the project is now legal because the (uninformed) public “sat on our rights” and did not challenge the invalid building permit.
(2.) In his ruling, the Judge ignored one other HCA complaint that was filed BEFORE the magic 45 day challenge period expired. That complaint involved the fact that the Sewerage Authority’s sewer hookup approval was conditioned on making “changes” to the project-in particular raising road grades surrounding the project and building sewer ejector pits on site-which were NOT part of the Gateway project approved by the Zoning Board in 1998. Since the “changed” project differed significantly from the project approved 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 floods. But these “changes” are potentially very dangerous to public health and safety. Raising road grades will, according to Hoboken’s engineering consultant Schoor-DePalma, “exacerbate flooding” of the properties surrounding Gateway, and during a storm, ejector pits could force 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!
Since the permit issued by the Construction Official to build beyond the foundation, issued on May 31, 2002, required zoning approvals for the “changed” Gateway project which were never obtained, this building permit was invalid. Even though the complaint challenging this permit was filed within 45 days of its issuance, the complaint was dismissed without even being addressed by the Judge.
(3.) 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, and the public will have to live with the additional flooding, traffic, blocked views, etc. forever. The lower court’s ruling thus raises the private interests of Gateway’s developers above the public interest. The public’s right to have zoning and construction laws properly enforced, to have a say in the zoning approval process, and to have their legitimate public health concerns addressed therein have been subordinated by the judge to the developers’ right to protect their investments and profits. 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, the City of Jersey City, and the Hoboken City Council consider the construction of Gateway to be so detrimental to the safety and quality-of-life of our communities that they are again joining forces to appeal Judge D’Italia’s decision and to ask the Appeals Court to impose an immediate stop work order. The appeal will be filed by September 23rd. 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 201-217-3456. If you specify your e-mail address, we will send you the full text of both this and last week’s letter.
Eric Volpe, President
Hudson County Alliance