Township files appeal of decision in train station case

BLOOMFIELD, NJ — Bloomfield has filed a notice of appeal contesting the June 3 jury verdict awarding $2.9 million to the former owner of the land containing the historic train station and tunnel on Lackawanna Place. The .6 acres of land is a slope that rises 13 feet from street level to abut the NJ Transit train station and it westbound tracks. A six-member jury voted 5-1 in favor of the former owner, Bloomfield Daval Corp.

The township contends the site is undevelopable and worth far less than what the jury believed. But Bloomfield Daval Corp. had proposed a development which would have raised the value of the land. Investor Howard Haberman is the principal of Bloomfield Daval Corp.

According to court papers, the township will question a decision by Judge Robert Gardner that barred testimony favorable to Bloomfield that would have shown the financial infeasibility of Haberman’s proposal.

Haberman had proposed a mixed-use development of 34 residential apartments and 12,500 feet of retail space which was to be constructed near the NJ Transit property line.

The township will also appeal Gardner’s decision to instruct the jury not to consider a lack of parking for the proposed project, and also that Gardner did not determine if there were enough evidence that Haberman may have received a zoning variance for the lack of parking. Haberman’s proposal had no on-site parking.

The township had condemned the property and took title in December 2012 after having it appraised as undevelopable land worth $440,000. This is the price the township thought it would have to pay Haberman to finalize the transaction.
Township officials had publicly stated the land was to be purchased to restore the historic train station and tunnel into a pedestrian walkway for NJ Transit commuters.

But Haberman rejected that amount based on his proposed development. He had the land appraised for $3.2 million. But plans for his project were never submitted to the Bloomfield Planning Board. Because of this and regulatory difficulties associated with building so close to a train station, plus the need to excavate a slope of land abutting and supporting a train station, the proposed development has been called “hypothetical” by Kevin McManamon, the attorney representing the township in its appeal. The notice of appeal was filed Aug. 5, in Newark Superior Court.

In a telephone interview earlier this week, McManimon said the township has a ordinance for parking requirements in the downtown redevelopment area. This is where the land is located.

He said if Bloomfield Daval was to build there, it would have needed to convince the Bloomfield Planning Board it would have enough off-site parking. Failing this, the corporation would have to go to the zoning board for a parking variance, or have the downtown parking ordinance amended. There is, however, a parking garage across the street from the historic train station, in the Glenwood Villages development.

“Parking in the garage would be allowed,” McManimon said. “But when you come to a planning board, you have to propose how many parking spaces you need. It is usually how many spaces you need on your property. Bloomfield Daval never took the steps to determine how many parking spaces its project would generate.”

McManimon said the parking garage, in the Glenwood Village development, has 459 spaces.

“We believe that this garage is too small for other projects and this hypothetical project,” McManimon said. “It can’t be built under current zoning provisions.”

He said the township had an expert who would have testified that the cost of building the proposed development, and the amount of revenue it would generate when finished, would have made constructing the project infeasible.

“Cost versus revenue, that’s feasibility,” McManimon said. “The corporation never did this analysis. Our expert did.”

McManamon said a report, on behalf of the township, by DMR, an architectural and engineering consultant firm, located in Hasbrouck Heights, “showed some of the challenges” to constructing on a narrow slope abutting a property with train tracks “as opposed to a piece of land out in an open field.”

The appeal will be heard by a panel of three appellate judges which can order a new jury trial. In that event, everything starts all over again, McManamon said. He said it is possible the appeal will be heard sometime next fall.

McManimon is an attorney with McManimon, Scotland & Baumann, of Roseland.