Here is the letter he has addressed to the Zoning Board:
Below is his actual email to me on this issue which I know he is very passionate about:
Neighbors and Fellow Citizens:
I am writing to you today to ask you to join me in fighting the wrongful decision of the Hoboken Zoning Board (ZB) to grant variances to allow 226 Park Avenue to be increased from 3 to 4 stories in height. This decision violates the Zoning Law, which does not allow such variances to be given if doing so causes harm to the public or undermines the intent of the law.
While it is not unusual for the ZB to grant such wrongful variances, our approach to fighting it is. We intend to appeal the ZB's decision to the Hoboken City Council, in order to shine light on the ZB's illegal and destructive practices and to develop procedures for Hoboken Citizens to defend themselves against such violations of their rights without having to pay thousands of dollars to take the appeal to court. Our hope is that by making the new Mayor and Council and the citizens aware of the ZB's wrongful practices, we will be able to end these practices, allowing Hoboken's historic character and quality of life to survive.
Many of you joined me in opposing the application by the owners of 226 Park Avenue to the ZB to grant variances to permit them to increase the height and density of their structure to 4 stories and 4 units per 2500 square feet. These zoning variances are "D" variances (governed by section 40:55D-70.d. of the N.J. Municipal Land Use Law [MLUL]) which, under state law, cannot be granted by the ZB "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." The granting of the variance to allow 226 Park to go from 3 to 4 stories violates both of these restrictions. As I noted in my statement to the ZB (see attached file "226 Park Avenue ZB hearing statement 06.doc"):
"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."
In addition, under NJ state law, D variances can only be granted by the ZB for "special reasons", and none were provided by the applicant. The closest they came was to claim that the proposed 4-story structure is "consistent with other buildings on the block", a reference to the fact that the west side of Park Avenue between 2nd and 3rd streets contains 4 and 5 story buildings which were built long before the current zoning restriction to 3 stories.
What neither the applicant nor the ZB acknowledged is that the granting of variances to increase the height and density beyond those allowed by the zoning law (without requiring any valid "special reasons") creates a domino effect: a legal precedent has been set which will force the ZB to give equal treatment to other applicants for height/density variances, thereby allowing developers to upzone all over Hoboken. In particular, accepting the "consistent with other buildings on the block" argument will lead to infilling to the maximum heights of nearby buildings, thereby allowing the increase in height and density to spread like a virus, destroying Hoboken's historic character and undermining our quality of life.
As ZB Planner Elizabeth Vandor testified at the 226 Park ZB hearing, amendments to the Hoboken Zoning Law have steadily decreased the permitted heights of buildings, evidently in response to the virulent increase in height and density that has occurred in recent years due to irresponsible overdevelopment allowed by not only the ZB but also by previous Mayors and City Councils in their creation of high density redevelopment zones. The Zoning Law's restriction to 3 stories in the R1 zone is a method to put the brakes on development in order to stop the erosion of our quality of life. Thus, increases in height and density without a legitimate "special reason" cause a "substantial detriment to the public good" and "substantially impair the intent and the purpose of the zone plan and zoning ordinance" and granting variances to do so are not allowed under state law.
As I mentioned above, the purpose of this email is to ask you to join with me in fighting the ZB's wrongful granting of variances to 226 Park. This process will unfold as follows:
On December 15, 2009, the ZB will pass a resolution permitting all of the variances applied for by 226 Park, including the height and density variances discussed above as well as length and setback variances which are discussed in the attached document. Shortly thereafter, a legal notice of the approved variance resolution will be published (I believe in the Jersey Journal and/or Star Ledger). Within 10 days of notice publication, an appeal to the municipal body (City Council) may be filed, and within 45 days of publication an appeal to the NJ Superior Court may be filed.
I am considering an appeal to the Hoboken City Council, which will need to be filed with the City Clerk by as early as December 25, 2009. The appeal to the City Council is an unusual procedure: as far as I know, no such appeal has ever been heard in Hoboken. My guess is that there was no point in doing so, since the prior City Councils have been pro-development for as long as I have observed them (almost thirty years). But now we have a new Mayor and Council who have indicated their concern about Hoboken's overdevelopment and who may well be willing to overturn the existing ZB's unfair granting of variances which undermine our community and quality of life. Such an appeal to the City Council will shine a public spotlight on the cancerous overdevelopment which has taken over the very institutions which have been established to protect us.
One more reason I am strongly considering a City Council appeal is that I am attempting to create a simple and straightforward procedure for appealing ZB decisions which does not require that citizens hire expensive lawyers which may cost tens of thousands of dollars to wage court battles with little public attention and little chance of winning. I am endeavoring to develop an appeal procedure which may be easily applied by concerned citizens to level the playing field with developers who consider costs of lawyers and court appeals to be a small component of their budget. Appeals before the Council will also be televised on Channel 78, thereby allowing the flow of information and level of citizen participation to increase even further.
I am asking you to consider joining in this effort in one or more of the following ways:
(1.) sending this email to all of your Hoboken friends and neighbors (as well as public-minded experts, such as lawyers or planners, who could help create an effective citizen appeal process) who might be interested in participating;
(2.) joining me as one of the group who are filing the appeal; and
(3.) sharing any questions, ideas, or thoughts you might have that will help to move this appeal process forward.
To reiterate, my intended appeal to the City Council may need to be filed by as early as December 24th, so I will need to hear from anyone interested in helping or participating in the filing of the appeal as soon as possible, preferably within the next week.
I apologize for burdening you with this long email, but I am hopeful that you will appreciate the need for action, and respond accordingly if you can.
Best wishes.
Daniel Tumpson ◦
