building heights
The town is planning to limit building heights to four stories.
PHOTO BY NEIL GRABOWSKY

By Tina Pappas
for Montclair Local

A proposed change to limit building heights in the area of Bloomfield Avenue and Church Street from six to four stories for prospective developments has the mayor concerned it could open the town to lawsuits.

Municipal planner Janice Talley detailed the restructuring and consolidation of five zoning and land-use ordinances into one new ordinance at the June 12 council meeting.
The five chapters being consolidated fall under Chapter 347 – zoning and land use regulations and entail land use procedures, site plan review, storm water control, subdivision of land and zoning.

Talley summarized the revisions for each of the commercial zone districts, which were revised to reflect the 2017 Master Plan. The C-1 zone district would cover the most active and used areas, referred to as “activity nodes” along Bloomfield Avenue and Church Street. The C-2 zone district would cover the Montclair Center business district along Bloomfield Avenue. The C-3 zone and C-4 zone districts would include commercial blocks around Bloomfield Avenue’s edge and village neighborhoods, respectively. The C-5 zone district would encompass the Hackensack UMC/Mountainside campus to buffer the transitional areas of commercial and residential areas.

Discussed at length was the existing C-1 zone district revision into a new CBD-4 zone district, which would also reduce the current building maximum allowed height of six stories to four, or 47 feet, and would allow for a maximum density of 55 units per an acre. Mayor Robert Jackson cited concerns of the reduction in height, which he worried would prompt property owners to potentially sue the town over the loss in one-third of their property values.

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Township attorney Ira Karasick said lawsuits were possible if a property owner was losing the ability to build two stories and therefore could lose a large amount of money. However he said, “We have the right to regulate the use of property and it doesn’t necessarily become a regulatory taking when you reduce from six to four stories.”

Regulatory taking refers to a situation in which a government regulates a property to such a degree that the regulation effectively amounts to an exercise of the government’s eminent domain power without actually divesting the property’s owner of title to the property. Karasick noted that most of the cases on regulatory taking support the township, but litigation can still happen.

The zoning law was changed in 1919 to allow for six stories on Bloomfield Avenue, but not one six story building has been built since, Jackson said. He further added since a six-story building is difficult to build due to parking requirements, then the township should not take the risk of getting sued by passing regulations.

Talley said however, that the current six-story zoning regulation creates the assumption that the township accepts six-story buildings even with other requirements that preclude a developer from building a structure that high. However, she said she would take Jackson’s concern over suits to the planning board.

Some other proposed line items include more specifications on commercial and residential mixed uses, and “accessory” dwellings to accommodate caregivers in helping aging residents in their homes. Replacing “layered” zoning is also being considered.

“Each zone district will have its own regulations and you won’t have to go flipping through every zone district to figure out which portions of which regulations would define a certain project,” Talley explained, adding that accessory uses and conditional uses would be now located on tables to be clear on what is permitted. “We had to revise the zoning ordinance to implement the recommendations in the master plan and our master plan reexamination report. We took this opportunity to restructure our land development regulations to make them easier to use.”

The ordinance will be introduced at the next council meeting on June 26.

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