March 17, 2004

The Mayor and Council voted to rezone the Spring Brook Acres Farm for high-density active adult housing last evening, despite a charge from the public of potential conflict of interest for one council member.

Ross Kushner, reading a prepared statement, put on record his belief that Council Jonathan Dunleavy continued to have a conflict which should have precluded him from voting on the property.  Dunleavy had announced on February 24th that he planned to rescind his recusal, just one day after resident Peter Gonzalez submitted a petition protesting the rezoning. Gonzalez' petition forced the council to approve the ordinance by a super-majority of four affirmative votes. Dunleavy, who had recused himself since September 19, 2002, was the critical vote that could overrule the petition.

Kushner's statement, reprinted below, noted that Dunleavy's unique position as President of Morse Lakes Property Owners Association (as well as a Morse Lakes property owner), which stands to financially benefit from the developer's offers to either rebuild the current dam, or move the proposed development project out of the way of the flood hazard areas, presents a conflict.  The agreement to rebuild the dam on behalf of the developer was outlined in a letter dated 3/14/03 by Kevin Boswell of Boswell Engineering. A letter from the DEP's Bureau of Dam Safety dated March 8th noted that until a dam assessment was completed, no developer could promise that the dam's status would not be impacted by such a development project. (See a copy of that letter HERE)

March 16, 2004

Mayor and Council
Borough of Bloomingdale
101 Hamburg Turnpike
Bloomingdale, NJ 07424

To Whom It May Concern:

We are writing in reference to the voting status of Councilman Jonathan Dunleavy on the proposed rezoning of the Springbrook Acres tract. As you know, Councilman Dunleavy resides in the Morse Lakes community and will be directly and personally impacted by the proposed rezoning, since the tract under consideration for rezoning is adjacent to the Morse Lakes community. In addition, as President of the Morse Lake Association, Councilman Dunleavy has a unique responsibility to represent property owners in Morse Lakes, including those with property abutting Springbrook Acres. On these issues alone we believe an evident conflict of interest exists for Councilman Dunleavy.
 
You are also aware that Councilman Dunleavy had recused himself from voting on this issue due to potential benefits to the Councilman arising from the possible cost of improvements to the Morse Lakes dam and the cost of a dam breach analysis necessitated by development of this tract. Since the developer had voluntarily offered to pay these costs Councilman Dunleavy stood to benefit personally and financially as a Morse Lakes property owner. This is confirmed in a letter dated 03/14/03 from the developer, Kevin Boswell, to Councilman Dunleavy of the Morse Lake Association (attached). In this letter the developer states “There is currently no obligation to undertake this work if the property owner develops the property in a manner consistent with the existing zoning.” The same letter states “The property owner would appreciate any support the Association may provide for the proposed rezoning.”
 
Recently Councilman Dunleavy has stated that this conflict of interest no longer exists. According to Councilman Dunleavy, a voluntary offer by the proposed developer, Kevin Boswell, to move the proposed buildings out of the dam hazard area will eliminate the necessity for dam improvements. Again, according to Councilman Dunleavy, this removes any potential benefit to Morse Lakes residents, including the Councilman.
 
However, we believe that a conflict of interest still exists on these issues for Councilman Dunleavy. Our reasons are as follows:
 
First, as noted in Mr. Boswell’s letter of 03/14/03, a developer operating under current zoning would not be obligated to pay for improvements or studies required of the Morse Lakes property owners. Due to the prior offer extended by Kevin Boswell, this alone suggests a potential benefit to Morse Lakes property owners in the proposed rezoning.
 
Although Mr. Boswell has exchanged his voluntary offer to fund these costs with a voluntary offer to amend his development in a way that may eliminate these costs, the end result is the same. We emphasize the fact that this particular development configuration is a voluntary offer by a particular developer. By supporting this developer with a vote in favor of the proposed rezoning Councilman Dunleavy may still realize a substantial financial benefit that is not available under current zoning.
 
In addition, in a recent letter (attached) the NJDEP office of Dam Safety has indicated that it is impossible to determine if an upgrade to the Morse Lakes dam will be needed without a full dam breach analysis that includes all proposed downstream development including roads, utilities and other features. Therefore, until this analysis is performed it is impossible to determine if Mr. Boswell is correct in stating that no dam improvements are necessary. Since Mr. Boswell has already offered to fund these improvements the underlying conflict for Mr. Dunleavy remains. Also, a dam breach analysis may be required regardless of the location of proposed buildings. Again, Mr. Boswell has voluntarily offered to fund this analysis creating a significant potential benefit to Councilman Dunleavy.
 
For all these reasons we insist that a conflict of interest still exists for Councilman Dunleavy, and that the Councilman should be recused from voting on this issue.
 
Sincerely,
 
 
 
Ross Kushner
Executive Director

CLEAN has been working closely with Kushner and the Pequannock River Coalition to stop the proposed development of the Horse Farm. We have also publicly questioned Mr. Dunleavy's decision to rescind his recusal, and the timing of it in light of the recent petition submittal.  Mr. Dunleavy submitted a letter to the editor of the Trends defending his decision, claiming he had rescinded his recusal after Morse Lakes resident Peter Gonzales told him that the Morse Lakes Dam, which would be rebuilt by the developer, was no longer an issue. Mr. Gonzales has disputed Mr. Dunleavy's claim, and his rebuttal to Mr. Dunleavy's letter can be seen here.

CLEAN submitted a formal complaint against the Borough in June of 2002 to protest the rezoning as a violation of the Borough's Town Center Agreement. We have also opposed their request to expand their town center to include the Horse Farm in an effort to approve this development project. See letters to the editor which ran in the Trends on March 17th by Ross Kushner (click HERE) and CLEAN Director Robin O'Hearn by clicking HERE.

March 5, 2004

The Mayor and Council held a public hearing to take input from residents on a proposal to stretch the Town Center Boundary to include Spring Brook Acres Farm.

CLEAN learned in January that the petition had been submitted by Borough Planner Jason Kasler, with the apparent approval of Mayor Craig Ollenschleger, who is listed as the contact. The petition, however, had apparently not been approved by the Borough Council. The Office of Smart Growth requested that the Borough provide a resolution of support from the Borough Council and proof of public hearings on the matter before the petition could be considered for adoption.

As a result, Mayor Ollenschleger announced at the January 13th Council meeting that a hearing on the Town Center amendment would be held on February 24th.

Councilwoman Sue Smith questioned the Borough Clerk on how the petition had been sent to the OSG without discussion before the Council, and was told that a resolution of support had been done at a meeting she had missed. When she asked for a copy of the minutes and resolution, however, none was provided.

The Council hearing took place on February 24th, with a sizable crowd in attendance. It was kicked off with a presentation by Jason Kasler, who claimed that the petition was necessary to allow the Borough to meet its affordable housing obligation, and claimed that the Borough would be subject to a builder's remedy lawsuit if the issue were not addressed. He also claimed that the petition supported Smart Growth principles, as it was designed to "connect the Bloomingdale Town Center to the Wanaque Town Center", and would provide "mixed-use development."

A total of 13 individuals spoke on the petition, with three individuals, (two members of the Bloomingdale Industrial Commission and Kevin Boswell of Boswell Engineering, who at times appeared to represent Kushner Companies (the Developer) and at others the landowner, speaking in favor. 10 others were opposed.

Mr. Boswell gave a lengthy presentation in which claimed that the Horse Farm had been designated PA5 without the Borough's or land-owner's authorization (which is not a requirement). He alluded to legal ramifications of the Borough's shortfall in COAH, insisting that the proposed development would correct the Borough's shortfall. He also claimed that the petition provided an opportunity to expand the Town Center Boundary to match the sewer service boundary. Boswell also took some credit for the already preserved open space on Federal Hill, saying that the Town Center boundary would result in the permanent preservation of 70% of the area, however two Federal Hill tracts, Higgins Peragallo and Bi-Coastal, are already preserved by Green Acres.

CLEAN director Robin O'Hearn disputed Mr. Boswell's claim, reading from a December 2002 report by the OSG to the Borough, in which the OSG noted that the Borough had been directed and agreed twice previously (once at the time of the Town Center designation in 1998, and again when Federal Hill and the Horse Farm were designated PA5 in 2001), to reduce  the town center boundary to match the sewer service boundary, as it had been an area of concern for the State Planning Commission.

She also disputed the claims of Kasler and Boswell that the petition represented "smart growth" or "mixed-use development." Smart Growth principles call for compact growth of development within the Town Center while protecting and preserving open space parcels surrounding the center. "Here, the Borough claims that this proposal is consistent with smart growth principles because it "connects" the town centers between Wanaque and Bloomingdale. Connecting Town Centers is not smart growth, it's sprawl, plain and simple," said O'Hearn. "Mixed use development," said O'Hearn, "calls for a mix of housing types, combined with access to retail, services, mass transit, and cutural/educational facilities. In contrast, this is a gated enclave of one type of housing, for one type of resident, far from any services, with a convenience store thrown in to give it the appearance of mixed use."

Further, O'Hearn contended that the boundary was completely arbitrary, since it removed parts of Federal Hill while leaving the Meer site inside the Town Center, complete with its affordable housing obligation. This policy of putting COAH on the most environmentally sensitive sites has failed in the past, noted O'Hearn, and will not be likely to produce the required units this time around. Several other members of the public, including Former Environmental Commission Chair John Capozucca, spoke against the proposal.

After the hearing had concluded, Councilman Jonathan Dunleavy called a point of order. He then announced that after consideration, he had decided that he no longer needed to recuse himself from any vote on matters pertaining to the Horse Farm. His recusal was originally based on the fact that Boswell Engineering, speaking on behalf of the developer, had agreed to upgrade Morse Lakes dam if required to build the housing development.  Last summer, Boswell agreed to move the development out of the flood hazard area, and claims that upgrades are no longer needed. However, no formal site plan has been submitted, so it is hard to determine is this is correct.

His change in status came just one day after resident Peter Gonzalez presented a petition to the governing body protesting the rezoning of the horse farm. Gonzalez, whose property adjoins the Horse Farm, joined with other landowners to present the petition, which requiresa super-majority vote by the council to pass the ordinance when 20% of landowners within 200 feet of a property protest a rezoning. Mr. Dunleavy's change of status ensures that the ordinance will pass by a supermajority (4 votes), as he has publicly spoken in favor of the zoning change. Councilmen Don Boonstra, Bill Steenstra, and Bernie Vroom have already noted their support of the rezoning. Councilman Hack Miller remains recused, and Councilwoman Sue Smith has not committed to voting for the project.

Mr. Gonzalez, who was in the audience at the time of Dunleavy's announcement, stood up to voice his protest of Dunleavy's change in status. He was later allowed to approach the dais by Mayor Ollenschleger, and proceeded to tell the audience that he believed the change in recusal status was a direct result of his petition, not due to a change in the developer's plans for the Morse Lakes Dam as Dunleavy claimed. Dunleavy claimed that he did not know about the petition, but admitted that he had spoken with the attorney the night before about rescinding his recusal.

Hack Miller, the other recused member, was on vacation at the time, and was unaware of Dunleavy's change in status. Upon his return this week, did not change his recusal, but decided to pursue additional legal advice on the matter, believing there may still be a conflict of interest.

The Town Center Petition amendment will come before the State Planning Commission for a determination most likely at the end of April. CLEAN's complaint against the Borough charging that the rezoning is a violation of their Town Center agreement will be heard at that time as well.

February 24, 2004

The February 23rd Planning Board meeting included the review of ordinance 4-2004, which calls for the rezoning of Spring Brook Acres Farm to allow for the development of 400 active adult housing units.

Borough Planner Jason Kasler presented the ordinance, claiming that the rezoning would allow the borough to meet its affordable housing obligation, and would be consistent with smart growth. He also claimed that the rezoning would offer environmental benefits, since a portion of the horse farm would be left as open space.  (Opponents to the rezoning, including the Pequannock River Coalition and Skylands CLEAN, note that the portion being left as open space cannot be developed due to environmental constraints. Further, with only about 30% of the lot without constraints, the builder is receiving a 17% bonus he wouldn't enjoy if following the current zoning). Current zoning on the lot allows for approximately 140 townhomes on the front portion of the lot within the current sewer service area, and a small number of single family homes on the back of the lot, which is zoned for one home for each three acre lot.

CLEAN submitted comments on the ordinance to the Planning Board through it's professional planner, Banisch Associates. The letter was never read into the record.

During the hearing, several residents who came before the board to voice concerns were challenged on their opinions. Ross Kushner of Pequannock River Coalition, who was on hand to offer his statement, stood to make a statement about the negative treatment of residents during the proceedings. Kushner watned it on the record that the bullying had occured.

Ultimately, the Planning Board accepted the ordinance with a few minor modifications. Several members said they were voting reluctantly for adoption. Only one member, Peter Dorram, voted against the ordinance.

January 28, 2004

At the January 13th  Council meeting, the Borough continued to press forward with their controversial rezoning of the Spring Brook Acres Horse Farm. Councilman Hack Miller stopped the introduction, calling a point of order, and reminding the Mayor and Council that the ordinance had not been publicly noticed, and suggesting that the public should be allowed to hear discussion on the matter from the outset, since the proposal was so divisive to the town's residents.  Thanks to Miller's objections, the Mayor tabled the ordinance introduction to the January 27th meeting so that residents could be informed of the date, although the ordinance itself could not be made public until the formal introduction.

The ordinance had originally been introduced March 2003, and was scheduled for adoption on April 1, 2003. CLEAN had submitted a complaint to the Office of Smart Growth regarding the rezoning upon learning of the proposal back in June 2002. But the adoption was put on hold indefinitely after hearings at the State Planning Commission on April 1, 2003. At that hearing, the Borough was asked to enter into negotiations with CLEAN, the Office of Smart Growth (OSG), and the Council on Affordable Housing (COAH) to try to resolve a shortfall in their affordable housing obligation that they claimed necessitated to the rezoning. Those talks broke down in July 2003 after CLEAN withdrew, unwilling to endorse a site plan that the residents had rejected, which would possibly jeopardize the preservation of nearby Federal Hill, and would hurt the integrity of the hard earned PA5 (environmentally sensitive) designation for the site.

The January 27th meeting was nearly postponed due to an evening snowstorm. Councilwoman Sue Smith asked that the meeting be postponed to allow for better public attendance. The request was denied by Mayor Ollenschleger. Many residents did make the meeting in spite of the weather, although the Borough Planner, Jason Kasler, who was scheduled to present the supposed benefits of the ordinance, was unable to attend.

Several residents spoke out against the proposed rezoning, noting that the issue was still unresolved at the State level. Councilwoman Sue Smith voiced her concerns that the OSG had informed the Borough it would be "unwise" to proceed with the rezoning during the hearing last April.

Even though the Mayor and Council had announced at the start of the hearing that they wished the dialogue to remain civil and respectful, one individual took the opportunity to publicly bash CLEAN and former Bloomingdale Environmental Commission Chair John Capozucca. Sheldon Bross, a Glenwild Lakes resident who has been an avid supporter of the Horse Farm development project, spent several minutes calling CLEAN's director Robin O'Hearn and Trustee John Capozucca "liars" until Ross Kushner asked the Mayor and Council to stop him.

The ordinance introduction was passed by a vote of 3 to 1, and sent to the Planning Board for review. A vote for adoption of the ordinance is set for March 23, 2004.

Need more background on this issue? Click HERE for the files of last year's hearings at OSG.