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Ordinance to maintain residential neighborhoods
(by Maggie Fazeli Fard - July 01, 2008)
Despite resident pleas asking the governing body to join their fight against an application by United Water to expand an existing water tank, the Montvale Council abandoned a proposed ordinance that was intended to regulate public utility uses in residential zones after the borough attorney called it “unnecessary” and “unworkable.”
Instead, on Tuesday, June 24, the council introduced a pared down version of the ordinance that, if passed, would require commercial and industrial developers, including public utilities, to install a 30-foot natural buffer when erecting structures in residential zones in order to maintain the appearance of the neighborhood.
“This is shorter and sweeter,” said Councilman Chuck Wehrle, who spearheaded the effort to prepare a regulatory ordinance, in a phone interview following the meeting.
The proposed ordinance, which was initially discussed at the June 10 meeting of the mayor and council, was intended to prohibit industrial uses in the borough’s residential zone. The decision to formulate a draft ordinance was prompted by complaints from residents neighboring United Water’s Chestnut Ridge Road water tank site, which the water company wants to expand.
For nearly 50 years, homes built at higher grades in the borough have been supplied with water from Rockland County, which has historically had a water surplus. United Water now contends that Rockland County is facing a water deficit and suspects that the water supply to higher grades could be cut off.
In what United Water has billed as a preparatory measure, the water tank site would be expanded to erect five 25-horsepower water pumps and a double-walled, 150-gallon tank to store sodium hypochlorite, a disinfectant similar to but stronger than household bleach. To date, there has been no formal threat from Rockland County of cutting off water. The application is currently under review by the zoning board.
Residents, who are concerned about potential safety and quality of life hazards, had hoped that an ordinance restricting non-residential uses in the borough’s residential zones would prevent the expansion. But a review by Borough Attorney Philip Boggia left the draft ordinance tattered.
Whereas the proposed provisions were designed to restrict commercial and industrial uses, Boggia wrote in a letter of response to the mayor and council, dated June 19, that the draft was self-defeating. Boggia said that one portion of the draft was redundant, certain restrictions having already been stated in the borough’s existing zoning code, and that another would encourage “larger and more obtrusive structures” typical of commercial and industrial zones.
One aspect of the draft survived the attorney’s comments to form the basis for the ordinance that was introduced at the June 24 meeting. If approved on second reading, the ordinance would require a natural buffer – in the form of trees, shrubs, bushes, and the like – of 30 feet around any commercial or industrial structure, including public utility structures, erected in residential neighborhoods. The 30-foot buffer would not include any other required setback.
This would result in “some preservation of aesthetic quality of residential neighborhoods,” said Joe Voytus, the attorney sitting in for Boggia at the June 24 meeting.
The ordinance passed unanimously on first reading. Before it is up for a second reading and public hearing, the introduced ordinance will be reviewed by the planning and zoning boards, which will then have 35 days to respond to the council with comments. The second reading, public hearing and council vote is scheduled for Aug. 12.
Pam Smith, a Hickory Hill resident and the president of Montvale Cares, a 200-member residents’ group that has engaged legal representation in opposition to United Water’s pending application, said that while the council did not introduce the regulatory ordinance that had been expected, she is confident that the matter is not dead.
“We are sure that the residents will have suggestions within the next few weeks to strengthen the ordinance and I am confident it will be amended as the process continues,” Smith wrote in an e-mail, noting that the ordinance is not as restrictive as residents believe it should be.
According to United Water attorney Daniel Gielchinsky, however, any suggestions that residents may make to the mayor and council would be “entirely inappropriate.”
“They are trying to circumvent the zoning board’s power,” Gielchinksky said in a phone interview. “To seek additional restrictions fails to recognize that we are already a non-conforming use. No restriction can be higher than what we already need to prove.”
Gielchinsky said that while the introduced ordinance is lesser in scope than its drafted version, “it is still very problematic.”
For one, he explained, “the ordinance fails to recognize the difference between commercial, industrial and utility uses. Our courts have long held that utilities are ‘inherently beneficial,’” meaning that utility uses, in the eyes of the New Jersey Supreme Court, are held to a different standard than commercial and industrial uses.
Additionally, Gielchinsky believes that the ordinance, while applicable to all commercial and industrial development in residential zones, is specifically intended to block United Water’s application.
“There was little consideration for lots other than United Water’s,” he said of the proposed 30-foot buffer requirement. “I have ascertained that there was no planning study commissioned to look at the impact on the rest of the town. It’s obvious that it’s targeted at only my client, and that is an illegal method of spot zoning.”
Maggie Fazeli Fard's e-mail address is fazelifard@northjersey.com.
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