226 Park Avenue Zoning Board Hearing Statement 8 18 2009 by Dan Tumpson Hoboken NJ

1. Members of the Hoboken Zoning Board: On April 10, 2009, the 230 Park Avenue Condo Association received a notice of a April 21, 2009 Zoning Board (ZB) hearing where an application from 226 Park Reality, LLC (the owner of 226 Park Avenue) for "
minor site plan approval"
for the construction of a 4 unit, 4 story residential building with exterior decks would be considered. According to the notice sent by the attorney for the applicant, this application would require the following zoning variances (i.e. ZB permission to violate the zoning law): (1.) Height in stories: present law: 3 stories; requested variance: 4 stories; (2.) Lot coverage: present law: maximum of 60% (i.e. a 60 ft building length); requested variance: 70% (i.e. a 70 ft building length); and (3.) Front setback from sidewalk: present law: minimum of 10 ft; requested variance: 0 feet (i.e. building will be built to the sidewalk). Lot coverage and front setback variances would allow the owner to lengthen the building to 10 feet longer than the zoning law permits by eliminating the 10 feet of setback between the front sidewalk and the building required by the zoning law. Keep in mind that the original 226 Park Ave building was actually much shorter than 60 feet, with a small storage shack at the back of the yard. Even without the granting of variances, the lengthening of the building to 60 feet and building up to the allowable height of the taller of the adjoining buildings would greatly increase the size (and value) of the new building beyond that of the original 226 Park. But the requested height in stories variance is the most troubling to those living on the south side of our building, 230 Park Avenue. While 226 Park Avenue is not next door (228 Park Avenue is in between), it will produce a new, 4th, floor opposite Apt 4L of our building which will eliminate sun and sky views for both units 3L and 4L. It will also create a situation where 228 Park Avenue is adjoined on both sides by two buildings (230 Park to the north and 226 Park to the south) in which both adjoining buildings violate the 3 story maximum height. In such a case, section 196-14.E.(6)(a)[2] of the zoning law stipulates: "
Where the adjacent buildings are higher than the maximum permitted for the district, the new structure may match the lower of the two (2) buildings"
Once this happens, then the owner of 228 Park Avenue will be able to increase the height to 4 stories without even applying for a variance, which will cover up the windows of 230 Park Apartments 3L and 4L. Similarly, allowing 226 Park to rise above the allowed 3 stories will facilitate the upzoning of the two buildings to the south; 224 Park could be raised to 4 stories with one less D variance than is required of 226 Park (i.e. the height variance to build above adjacent 3 story buildings) and if this happens, then 222 Park will be allowed to go to 4 stories without any variance, covering over windows in 220 Park. Thus we see that allowing one height variance has a domino effect which will encourage the upzoning (and resulting loss of light and air and covering of windows) of three other buildings. Note that the applicant's NOTICE OF PUBLIC HEARING is defective because it failed to list at least 2 other variances which are required to build the proposed 4 story building: a height variance, and a density variance, as follows: (4.) Section 196-14.E.(6)(a)[2] of the zoning law stipulates: "
Where a new building occupies no more than fifty (50) feet of frontage between two (2) existing adjacent principal buildings whose height (as measured in feet) is lower than the maximum permitted for the district, the new structure may match the height of the higher of the two (2) buildings."
If the new 226 Park is to be built to 4 stories as requested, it will exceed the heights of the adjoining buildings (228 and 224 Park), which requires a height variance. (5.) Section 196-14.E.(8)(a)[2] of the zoning law stipulates that the residential density of development of a site will be limited to a maximum number of dwelling units (DUmax) specified by the formula: DUmax = site area in square feet divided by 660 sq.ft., which in the case of 226 Park is 2500 sq.ft./660 sq.ft. = 3.79 dwelling units. Since the requested 4 units exceeds this maximum of 3.79, a density variance is required. My understanding is that Judge Gallipoli of the Hudson County Superior Court ruled last December that the ZB's practice of "
rounding up"
from 3.70 to 4 units violates the clear meaning and intent of this density limitation. The reason this is important is because the height and density variances are specified as D variances (i.e. the power of the ZB to grant these variances is governed by section 40:55D-70.d. of the N.J. Municipal Land Use Law [MLUL]). 40:55D-70.d.(5) prevents the ZB from granting a density variance and 40:55D-70.d.(6) prevents the ZB from granting a height variance (for a height exceeding the maximum permitted height, i.e. the height of the tallest adjoining building, by more than 10%, i.e. by about 3 feet). Section 40:55D-70.d. specifies that "
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."
Our concern is that not only will the granting of the height variance to 226 Park result in the diminishment of light and air from 230 Park units 1-L – 4-L, but will allow 228 Park to build to 4 stories without a variance, thereby walling off the windows of unit 3-L and 4-L. A variance which takes away the light, air, and sky view from units 3-L and 4-L clearly involves a "
substantial detriment to the public good"
and should not be allowed under the MLUL. Such variances also obviously substantially impair the intent and purpose of the zoning ordinance, which is intended to limit heights to 3 stories in the R-1 district, and should not be granted. Indeed, the proposed Master Plan places 226 Park, along with most of the R1 zoning district, within what it calls the "
Central Hoboken Historic District (NR Eligible, SHPO 1991): Bounded on the east by Hudson Street, on the north by Fourteenth Street, on the south by portions of Fourth and First Streets, and on the west roughly by Clinton and Willow Streets"
and under section 12 of the Recommendations section for Historic Properties, the MP states: "
… The City should enact standards for assessing the design of … or any new construction on property … within a historic district. A possible basis for these standards could be the criteria listed in Table VIII-5. To the greatest extent possible, these regulations should be applicable to applications to the Historic Preservation Commission, Planning Board, and Board of Adjustment."
Under Table VIII-5, Possible Design Criteria for New Construction, the MP states that "
Permitted building heights are adequately addressed by the existing Hoboken Zoning Ordinance bulk regulations."
(MP p. 114.) Thus the intent of both the existing zoning law and proposed MP is to limit height to 3 stories. Since Section 40:55D-70.d. of the MLUL specifies that "
No variance or other relief may be granted under the terms of this section, including a variance or other relief involving an inherently beneficial use, without a showing that such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and the purpose of the zone plan and zoning ordinance."
, and since we have just shown that granting the variances will result in substantial detriment to the public good and will substantially impair the intent and the purpose of the zone plan and zoning ordinance, then the required height and density D variances cannot be granted by this Zoning Board. One other observation: Planner David Spatz's August 14, 2008 Memorandum no. 1000.14.08 does not even address the "
benefits must substantially outweigh the detriments"
requirement of section 40:55D-70(c)(2) of the MLUL. He fails to mention such obvious detriments as loss of light and air and the upzoning precedent that will lead to the tearing down and rebuilding to greater heights and densities at the expense of the historic character of Hoboken's neighborhoods and our quality of life. The only seeming benefit he cites is the replacement of the small shed that occupied the rear yard with open space. What he does not mention is that the original building was shorter than the allowed 60 feet, so that the increase in the back yard at the rear is offset by the lengthening of the building. Indeed, variances are requested to increase the buildings footprint from 60 to 70 feet and to eliminate the 10 ft setback to the sidewalk, so there is clearly no open space being freed up; quite the opposite. In fact, if the variance for the elimination of the 10 foot setback is granted, 226 Park will be the only building where the building is not set back 10 feet on the entire block and in the entire neighborhood! So much for preserving Hoboken's historic character! The point is that by failing to cite even one valid benefit and by ignoring all of the obvious detriments related to loss of light, air, open space, pressure on the sewers, additional parking requirements, etc., this application fails to satisfy even the much weaker C variance criteria. Obviously, this proposed construction is a greater threat to 230 Park Avenue residents than to others in the neighborhood, but it creates a disturbing precedent of allowing density to be increased, in violation of the intent and letter of the zoning law, with consequences such as increased traffic and stress on air quality, parking, sewer, and water resources, so that our quality of life is diminished. Given that the granting of the zoning variances needed for the proposed 226 Park construction to proceed will result in "
substantial detriment to the public good"
, the zoning and MLU laws require that the variances NOT be granted. We who will suffer the most from these violations of the ZL ask that you consider how you would feel if you were in our shoes: would you feel it right to grant a variance if it resulted in your windows being covered over and your light and air eliminated? Fortunately, the ZL demands of you that you do what is right and not grant these detrimental variances. Dan Tumpson 230 Park, unit 5L