Peter G.

Steck
Community Planning Consultant
P. O. Box 306, 80 Maplewood Avenue, Maplewood, New Jersey 07040
(973) 762-6568
Fax 762-5457
Steckplan@gmail.COM

January 15, 2010

with corrections made on January 17, 2010 and shown in bold type and underlined

PLANNING EVALUATION
TO: Maplewood Board of Adjustment
Robert J. Mittermaier, Maplewood Construction Code Official
Roger J. Desiderio, Esq., Township Attorney

RE: Appeal of November 6, 2009 Zoning Administrative Officer Determination

Alleging Block 17.16, Lot 10 (125 Dunnell Road) is in the NB Zone

INTRODUCTION

On November 6, 2009, Maplewood Construction Code Official Robert

Mittermaier, acting as the Maplewood Zoning Administrative Officer, issued a memo to
the Maplewood Township Committee. In that memo Mr. Mittermaier opined that the
police building property at 125 Dunnell Road was located in the NB Neighborhood
Business Zone. A timely appeal to the Maplewood Board of Adjustment was
subsequently filed under N.J.S.A.40:55D-70.a. alleging that the NB Zone determination
was in error and that the referenced property is in the R-1-7 Residential Zone.

This Planning Evaluation has been prepared on behalf of two households on

Maplewood Avenue. The individuals are Joe DePlasco & Nahela Hadi at 126
Maplewood Avenue and Diana Leo & Dr. Jane Aronson at 128 Maplewood Avenue. It
reviews the information provided by Zoning Administrative Officer Mittermaier [Zoning
Officer] as well as other materials secured from the Township of Maplewood and from
the Essex County Planning Board. Concluded is that the property at 125 Dunnell Road
is in the R-1-7 Zone and not the NB Zone as opined by Mr. Mittermaier.

DESCRIPTION OF ZONING OFFICER’S DETERMINATION

Attached to this Planning Evaluation are copies of the November 6, 2009 Zoning
Officer’s determination as well as attachments to that determination which apparently
were relied upon by the Zoning Officer in making his determination. For convenience
the pages have been marked in the upper right hand corner with designations M-1
through M-11. Table 1 presents my description of each page and provides my
comments as to the relevance of the documents provided by the Zoning Officer or by the
Township Attorney.

TABLE I-A
DESCRIPTION OF ATTACHMENTS AND COMMENTARY
Page Description of Document
M-1 Copy of November 6, 2009
memo from Mr. Mittermaier.
M-2 Copy of November 5, 2009
M-3 memo from Township
Attorney Desiderio to Robert
Mittermaier.
M-4 Copy of February 1, 2001
memo from Mr. Mittermaier to
the Planning Board.
M-5 Portion of the 1996 Zoning
Map
M-6 Portion of 1998 Maplewood
Tax Map, Sheet 12
Referenced as Attachment #1
M-7 Portion of a 1963 Zoning Map
Referenced as Attachment #2
-2-
Comments by Peter Steck
The memo relays the Zoning Officer’s determination that the
property is in the NB Neighborhood Business Zone. It relies on
Ordinance 2171-01 as the basis for the determination.
The memo indicates that the Township Attorney has reviewed
several zoning maps.
The chronological listing of maps is alleged to reference that the
property was initially in a Business District, then in the R-1-7 Zone
and then, after 2003, in the Neighborhood Business Zone. It is not
clear whether these maps were official maps or were found in
private files and whether they were properly adopted by ordinance.
The memo references a February 1, 2001 memo from Mr.
Mittermaier to the Maplewood Planning Board.
Referenced as an attachment is Ordinance 2172-01 which was is
alleged to have been “passed” on September 4, 2001.
The memo indicates that the Zoning Officer determined the
property to be in the R-1-7 Zone at that time.
According to the Zoning Officer, earlier history showed the
property to be in a Business Zone (not the same as the
Neighborhood Business Zone) and in 1986 in an R-1-7 Zone.
The Zoning Officer also notes that the 1984 Master Plan did not
contain a recommendation that the property be rezoned
(presumably from the Business Zone to the R-1-7 Zone).
Although not referenced in the memo, it is noted that the 1984
Master Plan recommended a P-Public designation for the subject
property.
The section of the 1996 Zoning Map does not show the subject
property. Hence, it is not clear why this map is provided.
Shows the subject property but no zoning designation.
Shows the subject property in a Business District. It is noted that
the 1963 Business District also included the Maplewood Village
Area and Springfield Avenue.
It is noted that the Business District is not the same as the
Neighborhood Business District.
 -3-

TABLE I-B
DESCRIPTION OF ATTACHMENTS AND COMMENTARY - Continued

Page Description of Document Comments by Peter Steck

M-8 Portion of 1972 Zoning Map Difficult to read, but appears to show the subject property in a
Referenced as Attachment #3 Business Zone which also applies to the Maplewood Village Area
and to Springfield Avenue.

The Business District is not the same as a Neighborhood Business

District.

M-9 Portion of 1986 Zoning Map Shows the subject property in an R-1-7 Residential Zone
Referenced as Attachment #4

M-10 Copy of Ordinance #2172-01 The third “Whereas” indicates that the rezoning was
M-11 recommended by the Planning Board. However, there was no
indication in the Ordinance of the required determination by the
Planning Board regarding consistency or inconsistency with the
Master Plan.

The FIRST Section indicates that the subject property along with
several other properties was to be removed from the R-2-4 Zone
and placed in the Neighborhood Business Zone were removed
from the R-1-7 Zone and placed into the Neighborhood
Business Zone.

The FIFTH Section indicates that advance notice of the pending

ordinance (but not the adopted ordinance) was sent to the
adjoining municipalities and to the County Planning Board.

The Ordinance indicates that it was introduced on August 7, 2001

and that the Township Committee met again on September 4,
2001 “at which time and place the Committee proceeded to
consider the said Ordinance on second reading and final
passage.”

The Ordinance does not indicate whether notices were sent to the
owners of properties being rezoned or that notices were sent to
property owners within 200 feet of the properties to be rezoned.

There is no indication of whether the Ordinance was consistent or

inconsistent with the Master Plan.

There is no indication that the Ordinance was in fact passed on

September 4, 2001. There is no record of who voted in favor or
against the passage of the Ordinance.

A November 10, 2009 OPRA request by me to the Township of

Maplewood for a copy of the September 4, 2001 minutes of the
Township Committee was responded to on January 13, 2001
January 13, 2010 only verbally indicating that the requested
official minutes were missing.

End
 -4-

PROCEDURAL REQUIREMENTS FOR VALID ORDINANCE ADOPTION

A change in a Zoning Map can be accomplished either by graphically changing

the map or by describing the change in words, but like any legislative change validity
depends upon adherence to established procedures. The procedures for zoning
changes are detailed in the Municipal Land Use Law, N.J.S.A.40:55D-1, et seq. The
procedures are intended to give the public fair notice of a proposed rezoning, to
encourage adherence to the master plan, and to provide a secondary source of the
records – the County Planning Board. The following procedural comments are offered.

1. All development ordinance changes are required to be sent to the planning board
for a consistency review. A planning board is given the opportunity to report
back to the governing body regarding whether the proposed zoning change is
substantially consistent with the master plan. In the subject instance, the 1984
Master Plan recommended a P-Public designation and the current March 9, 2004
Master Plan recommended an R-1-7 designation.

2. When properties are to be reclassified, a notice is required to be sent to property

owners within the rezoned area and within 200 feet of the rezoned area. See
N.J.S.A.40:55D-62.1. The only exception to the notice requirement is where a
reexamination report adopted by the planning board (different from the master
plan) recommends the rezoning.

3. Where a proposed rezoning is inconsistent with the master plan, the governing
body is required to adopt an explanatory resolution at the time that the rezoning
ordinance is adopted. See N.J.S.A.40:55D-62.a.

4. When a rezoning ordinance is adopted, a copy of that ordinance along with any
explanatory resolution is required to be filed with the county planning board. The
rezoning does not take effect until such a copy is filed with the county planning
board. See N.J.S.A.40:55D-16.

PLANNING CONCLUSIONS

It is concluded that on November 6, 2009 the Maplewood Zoning Officer made

an error in determining that the property at 125 Dunnell Road was in the NB
Neighborhood Business Zone. This conclusion is based on the following:

A. The Zoning Officer did not have sufficient evidence to support his NB Zone
conclusion. He did not determine whether Ordinance #2172-01 was property
adopted. He did not examine the Essex County Planning Board files.
Furthermore, the Maplewood files which might have shed light on this issue are
missing.

B. The proper procedures for rezoning were not followed. It appears that no notices
were sent to property owners in the affected area and within 200 feet of the
affected area and that no finding was made that the rezoning was inconsistent
with the master plan. Moreover, the Township Committee failed to adopt an
explanatory resolution providing a rational for the rezoning despite its
inconsistency with the master plan. Finally, the Township failed to file an
adopted ordinance (assuming it was adopted) with the Essex County Planning
Board.
 -5-

C. My research of the Essex County Planning Board files shows that, prior to
November 6, 2009, the latest zoning maps filed indicated that the subject
property was in the R-1-7 Zone.

D. Prior to November 6, 2009, I purchased a copy of the Maplewood Zoning and

Development Regulations from the Maplewood Clerk’s office and viewed the
zoning map on the Maplewood Municipal Website. Both sources showed the
subject property to be within an R-1-7 Zone.

In summary, it is concluded that there is no reliable evidence that an ordinance

rezoning the subject property from an R-1-7 Zone to the NB Zone was properly adopted.
Fatal procedural flaws occurred which resulted in the subject property remaining in the
R-1-7 Zone - the precise zone recommended in the current Maplewood Master Plan.
That the Zoning Officer opined otherwise on November 6, 2009 or that Maplewood
recently replaced the zoning map on its website with a new map showing the subject
property to be within an NB Zone are of no consequence. The correct designation of
the police building property at 125 Dunnell Road is the R-1-7 Zone.

Peter G. Steck, P.P., AICP

N. J. Planner License No. 1776
January 15, 2010
January 17, 2010

Attachments: M-1 through M-11.