The city's Zoning Board first approved the garage for 15 variances in June of 2004. However, the Fund for a Better Waterfront, a local activist group, appealed the decision and argued that granting 15 variances is "zoning by variance," meaning that approving the garage would be a de facto rewriting of the zoning code.
In Hoboken, the City Council is the board that is supposed to have the legislative authority to write and change zoning.
Superior Court Judge Hector Velazquez upheld the Zoning Board approval last year. But 10 days after the ruling, in another case involving the township of North Brunswick, the Superior Court reversed the Zoning Board approvals, stating that the North Brunswick Zoning Board "blatantly rejected the township's zoning plan and improperly arrogated to itself the power to substitute its idea of an appropriate zone plan."
The FBW argued in its appeal that the North Brunswick case was a precedent for overturning the Hoboken Zoning Board approvals.
Court sides with Stevens In its March 31 decision, the Appellate Court ruled that "although the requested variances are clearly numerous, our review of the record causes us to agree with Judge Velasquez's observation that 'the variances...do not substantially alter the character of the district but, in fact, further the intent and purpose of the zone plan, the zoning ordinance, and the municipal land use law."
The court ruled that there are no actual residential uses adjacent to the garage and it will be located away from the bulk of those uses in Hoboken.
"Even if the garage and the academic building to which it will be connected are considered one building, the section that exceeds the height limitation will be more than 200 feet away from the nearest actual residence, and therefore the governing body's intent to ensure adequate light, air, and space would still be met," read the court ruling. "Furthermore, the garage will be adjacent to two public parks. By providing parking for Hoboken residents utilizing the parks, the garage will benefit neighboring properties. Since the zoning ordinance requires 1,748 on-campus parking spaces and Stevens presently only has 633, the additional spaces that the garage provides will bring Stevens closer to conformity with the zoning ordinance."
Ron Hine, the executive director of the FBW, said Thursday that the ruling directly contradicts the North Brinswick decision handed down by the same court last spring.
"This is bad for Hoboken and other places in New Jersey where Zoning and Planning boards overstep their authority and ignore the dictates of the local zoning ordinance," Hine said. "In Hoboken, the Zoning Board has been making a mockery of the city's zoning regulations. This court decision makes it difficult to remedy this problem."
He also said that the decision is a major setback for Hoboken's waterfront.
"Up to this point, Hoboken's waterfront development has been held to a much higher standard than what is found in surrounding communities," he said. "The Stevens' garage project, if built, will blight the portion of Hoboken's waterfront."
The garage will be built primarily for students, teachers, university staff, and visitors to the campus, although some spots will be set aside for the public.
An ongoing legal feud This appeal is not the first battle between Stevens and the FBW. In March and April of 2002, Stevens blasted 35,000 tons of the green-veined serpentine rock that makes up Castle Point on Hoboken's central waterfront for the Babbio Center. No one disputes that the rock contained some level of naturally occurring asbestos. FBW officials alleged that Stevens was not taking the proper precautionary steps to protect the site and the surrounding neighborhood.
But Stevens contended that precautions were taken and that there was no health threat at the site. They added that the FBW "concocted" a false hazard for the purpose of defeating Stevens' development plans.
In January of 2003, Stevens filed a defamation suit and prima facie tort, a legal term for "intentional and malicious action that causes harm," against the FBW and its leadership.
In July of 2004, Judge Camille Kenny dismissed all 10 counts of the alleged defamatory statements and in February 2005, Judge Fred Theemling dismissed the prima facie tort.
Lawyers for the FBW have claimed that the defamation suit was a strategy tool to quiet the FBW. Their lawyers described the lawsuit as a "SLAPP" suit, which is an acronym for Strategic Lawsuit against Public Participation. The idea is that Stevens could use their ample resources to stop the FBW from being a whistle blower.
Since lawyers representing FBW contend that the three-year-old defamation case was frivolous from the start, they are seeking over $1 million in legal fees in response. The Appellate Court is currently hearing that case.
Managing Editor Tom Jennemann can be reached at firstname.lastname@example.org.