A developer is asking the courts to overturn the Morristown zoning board’s “erroneous, arbitrary and capricious” rejection of a proposal to erect 21 apartments above retailers at the corner of South and DeHart streets.
In a lawsuit filed this month in state Superior Court, Milelli/Morristown LLC asserts that board members applied incorrect legal standards, submitted shaky evidence and refused to admit e-mail testimony from a retail tenant, over six virtual hearings stretching to last year.
The developer is asking the court to reverse the March 3, 2021 decision, approve the three-story addition, and order the town to pay legal costs.
Citing the pending litigation, board Chairman Steve Pylypchuk declined to comment on Monday.
Back in March, he described his “no” vote as a defense of the town’s zoning laws.
“I believe the greater good is the zoning ordinance being enforced the way it’s supposed to be,” Pylypchuk said after a spirited debate, which actually resulted in a 4-3 vote for the 23-27 South St. project.
But the nature of the variances required a fifth vote for approval. James Bednarz and Barbara McNally joined the chairman with opposing votes that sunk the application.
They contended an approval would have subverted zoning laws that specify DeHart Street as a dividing line, separating larger redevelopments near the Morristown Green, and more modest structures towards town hall.
The project needed variances to exceed limits for density, floor area ratio and structural dimensions.
Filed by project attorney Frank Vitolo for developer Joseph Milelli, the civil suit contends Milelli satisfied his obligation — as set forth in appellate cases such as Grubbs
v. Slothower (2007) and Randolph Town Center v. Township of
Randolph (1999) — to mitigate any problems posed by his project.
These steps included reserving parking in the nearby DeHart Street garage; and proposing an additional affordable unit, features to reduce stormwater runoff, tree plantings, and a wall mural in partnership with Morris Arts.
The project was scaled from 30 apartments to 21, among numerous revisions over the course of board hearings.
Rather than displacing his retail tenants with a new structure, Melilli proposed building the units atop the 23 South gift boutique (former home of Scotti’s Records), J.C. Reiss Optician, Pure Pita, the Laboratory Hair Studio, Zero-180 Market and the basement Laundromat bar.
The rejection was a rare setback for Vitolo. The Riker Danzig partner has won approvals for many of Morristown’s largest developments, including the M Station office park, and a hotel and apartments at Market and Bank streets.
Milelli’s lawsuit is especially critical of Bednarz, the former board chairman. He presented his own slide show during the hearings to rebut testimony of project planner Michael Tobia, and, according to the suit, entered into evidence a photo of a Home Depot surveyor’s wheel over Vitolo’s objections.
In February, Bednarz testified that he had borrowed such a device to prove the parking garage is beyond 400 feet from the proposed apartments.
Bednarz “appears to have developed his own, unique standard for the grant of the (D) variances sought here; namely…variances may only be granted if the public benefits offered are significant enough to satisfy him,” the suit charges.
He ignored zoning law interpretations from town Planner Phil Abramson, as well as arguments from board members who felt the project would contribute to Morristown’s downtown resurgence, the legal papers contend.
Bednarz could not immediately be reached for comment. In March, he rejected colleagues’ comparisons of Morristown to Jersey City and Hoboken.
“I know you want to see Morristown built out. But I’m happy with letting them continue to build out Jersey City and Hoboken, quite honestly,” Bednarz said at the virtual meeting.
That night, Pylypchuk concurred. “We are not Jersey City and Hoboken,” he said. “We are Morristown. Here, it’s different. I moved here because we are not Jersey City.”
Greedy developers always trying to take as much as they can. Coming to the board with a project grievously over ordinance and then scaling it back only after being turned down. Way to show good faith lol. And now they’re sueing because they didn’t get what they want, and threatening to pin the legal fees on the tax payers.
“ Bednarz “appears to have developed his own, unique standard for the grant of the variances sought here; namely…variances may only be granted if the public benefits offered are significant enough to satisfy him,”
God forbid the public interest is prioritized over the financial interest of developers.
Good! I hope the developer wins.
And another lawsuit Morristown residents have to pay for. The Board set precedence approving every application with laundry lists of variances. No surprise they’re being challenged when they finally deny a (reasonable) application. Should have started denying significant variances years ago. Guess there was no profit for them to make on this one.