Council bows out of ongoing West Essex Highlands debate

WEST ORANGE, NJ — Township attorney Richard Trenk advised the West Orange Township Council during its Nov. 24 meeting not to vote on a resolution proposed by a local conservancy group and approved by the West Orange Open Space and Recreation Commission expressing support for the group’s goal of preserving the approximately 120-acre parcel of land adjacent to the West Essex Highlands condominium complex that has been the subject of a five-year lawsuit between the township and the landowner.

Trenk urged the council not to weigh in on the resolution, which had been passed 5-0 by the commission at its Nov. 9 meeting, due to the decision of the township and property owner Garden Homes Inc. to settle the litigation out of court in August. The litigation centered on Garden Homes’ contention that new zoning regulations and a tree ordinance infringed on its right to develop the land.

Trenk said Essex County Superior Court Judge Thomas Vena had agreed to throw the case out without prejudice on the understanding that Garden Homes would be allowed to create a concept plan for the land’s development using feedback from West Essex Highlands residents, and eventually present it to the West Orange Planning Board for approval. “Without prejudice” means the case can be brought back to the courtroom at a later time, should it be deemed necessary; if the case had been dismissed with prejudice, the matter would be permanently closed.

Approving a resolution that advocates for preserving that land just after the township agreed to let the development process resume would send the wrong message and hurt West Orange if the matter ever returned to court, Trenk said.

“You as a township council should not weigh in on this issue now because one of the things we agreed when we agreed to dismiss that litigation without prejudice is that we would allow an open and fair process for consideration of whatever development is proposed,” Trenk said. “Their key litigation claim is that we kept changing the rules. And that is a problem when government entities are alleged to have been arbitrary, capricious and unreasonable. So we said ‘We’ll step back and let the process unfold.’”

William Northgrave, the attorney representing the township in this case, agreed that now is “not the right time” for the council to pass a measure on this issue, especially when any measure would only be advisory as any development would actually fall under the Planning Board’s jurisdiction. Though he said it might be something to consider if full-blown litigation ever started up again, Northgrave stressed that approving a resolution would make it look as though the township is not interested in working with Garden Homes.

And that would not be a good message to send, Northgrave said, because having the condo association collaborate with Garden Homes to craft a concept plan is the township’s best chance of obtaining a satisfactory development on the property.

“The reality is something will get built there and, if we can put the homeowners’ association in control of how that happens, I think it would be a benefit to the homeowners, it would be a benefit to the developer and it would be a benefit to the township,” Northgrave said. “We can be part of deciding what is going to happen as opposed to having some third party determining it for us all, and we may all wind up being unhappy.”

West Essex Highlands resident Rita Yohalem told the West Orange Chronicle she believes representatives from Garden Homes have met with the condo association at least twice to discuss the concept plan. Though she was not a part of those meetings, Yohalem said the association informed residents that the new plan includes building 104 single family homes on the property. That is down from 136, the number the developer had listed in its initial application and rejected by the Planning Board in 2005.

Mark Hoffman, the West Essex Highlands director of development, did not respond to request for comment before press time Dec. 1.

But Yohalem and the other members of the West Essex Committee Against Rezoning Excess — or WE CARE, the conservancy group largely consisting of West Essex Highlands residents in opposition to the development’s original application — maintain that any development on the land would hurt the community. Yohalem said the organization was “disappointed” by the township’s decision not to weigh in on its measure, but intends to continue its push to save the land from development. As Alan Yohalem, Rita’s husband and fellow steering committee member, pointed out, WE CARE believes the parcel is the largest undeveloped property in the township, which is why the group is opposed to seeing all of that precious nature destroyed.

“It’s a very pristine piece of property,” Alan Yohalem told the Chronicle in a Nov. 24 phone interview. “We live in a very densely populated county, and just the idea of putting in more housing doesn’t seem to accomplish any real purpose as far as maintaining or improving the quality of life of people who live here in West Orange.”

The Yohalems pointed out that even the township has expressed support for preserving the property in the past. The 2010 Master Plan Update explicitly stated that the property should “remain undeveloped and preserved as open space,” as the 2010 Open Space and Recreation Plan Update identified only 316 acres of vacant land in the township, including the parcel.

Space is not the only reason WE CARE wants to preserve the land. Garden Homes’ previous application to develop the property called for the removal of approximately 7,500 trees. While it is unknown how many trees the current concept plan will require to be cut, WE CARE member Abraham Bunis told the Chronicle that demolishing any amount of trees would be an “environmental defeat” in West Orange.

Bunis stressed that trees serve as an invaluable resource to nature, which statistics do show. According to the Arbor Day Foundation, a mature leafy tree produces enough oxygen in a season for 10 people to breathe in one year. Additionally, North Carolina State University reports that a tree can absorb up to 100 gallons of water a day.

The latter fact should be particularly meaningful to residents considering the property contains a steep slope, according to Bunis. If trees are cut down, he predicted that flooding will become a major problem for the community members who live downhill of the area. He said it would also endanger the animals that live in the property’s forest. A 2005 Sierra Club resolution advocating for the land’s preservation stated that the parcel of land was the habitat for migratory birds, such as the raptor and neotropical migratory songbird, in addition to being within the geographic range of the endangered Indiana bat. The resolution also postulated that the tract may be home to several other threatened species, including the wood turtle, the bog turtle and the blue-spotted salamander.

Overall, Bunis said the nature that comprises the property — which includes mature forested uplands, multiple wetlands and the headwaters of Canoe Brook — is simply too important to eliminate.

“If you were to imagine those thousands of trees being taken down so that flat surface could be had to dig foundations and put up driveways and roadways, then you would really know that it’s not for the benefit of everyone except the developer,” Bunis said in a Nov. 25 phone interview. “The community should choose the welfare of the people rather than the benefit of the developer.”

Another issue WE CARE has with developing the land will be the impact on the West Essex Highlands community itself. Since Garden Homes came to agreements with neighboring towns Essex Fells and Verona that would prevent any access to the potential development through their own roads, the only way to reach the property would be through the West Essex Highlands. This was a big point of contention with the 2005 application, which listed Oval Road as the sole entrance, as residents protested that hundreds of cars would be driving through their neighborhoods if the new development were constructed.

Even the West Orange Police Department and the West Orange Fire Department objected, with the WOPD pointing out that the increase in traffic would be too much for the area and the WOFD arguing that emergency vehicles would have a difficult time getting through.

WE CARE cofounder Paul Tractenberg said he was told that Garden Homes’ new concept plan contains possibly three entrance routes plus an emergency exit near Pleasant Valley Way, but he thinks traffic will still be a problem. In fact, he said having three entryways instead of one might be worse since it will have the added effect of breaking up neighborhoods.

Plus, Tractenberg said West Essex Highlands residents will have to deal with the impact of the development process itself.

“All the construction vehicles are going to come rumbling through our main road,” Tractenberg told the Chronicle in a Nov. 24 phone interview. “There’s going to have to be substantial dynamiting of mountainous areas, noise pollution, safety issues for kids who live here. And the development period could go on for five or six years. So it will be tremendously unsettling for our community during that process.”

Tractenberg added that the effect of that disruption could have a negative impact on property values.

The ultimate goal of WE CARE is to partner with state conservancies to raise money to purchase the entire parcel of land from Garden Homes on behalf of the township. Rita Yohalem said her organization has held discussions with the Land Conservancy of New Jersey and the Trust for Public Land, though it is not known at this point how much would have to be raised to make a sufficient offer. In 2010, Tractenberg successfully sued West Orange to see the results of two appraisals the township had done for the property, which he said were in the $15 million range. But, he said he does not know how much the property is worth today.

Rita Yohalem said the attempt to get the council to vote on WE CARE’s resolution was an effort to bring the township on board with its mission to buy the land, something that the conservancies told her would be a vital support in raising funds. And although the council chose not to get involved, WE CARE member Roger Streit said he is still optimistic the group can attract the necessary money. Streit, who has experience working for an environmental lobby, said the group has reached out to the Audubon Society and plans to contact nearby communities, as well. Plus, he pointed out that the township and Essex County may be able to use some of their open space funding to help the cause.

In the meantime, Rita Yohalem said WE CARE members will continue to make their voices heard, and she hopes others will join in too, saying it is an issue touching everyone.

“What happens to this piece of property really will affect the entire township,” Rita Yohalem said in a Nov. 24 phone interview. “I unfortunately think it will not be a positive impact on the town if this does develop.”

Mayor Robert Parisi told the Chronicle that the township has always supported preservation. Moving forward, Parisi said it will continue to do so “whenever and wherever it is possible to achieve that.” But he also pointed out that conserving the property would require a significant amount of money, and the developer has never expressed a desire to sell the land.

At the same time, Parisi said any preservation must be balanced with the rights of property owners. That is why he said he is pleased to know that Garden Homes is working with the condo association in crafting its concept plan.

“It is always best when both sides try to work together to find a solution,” Parisi said in a Nov. 25 email. “Given the history of this land, it is not likely any plan would satisfy everyone involved. But it is not likely a legal ruling would either.”