Extension For 5-Story Apartment Building Debated In Morristown

MORRISTOWN, NJ — A developer who sued Morristown after the planning board denied an extension for an apartment project planned for the vacant downtown property recently appeared before the board again.

Bakod Holding Corporation filed the lawsuit, alleging that after their initial proposal was approved by the planning board in 2018, they received two extensions due to the COVID-19 pandemic.

Morristown's planning board unanimously declined a third extension for the 38-unit request last week—for the second time.

According to board attorney John Inglesino, Superior Court Judge Michael Gaus remanded the project back to the town planning board, asking them to "reconsider" their denial of the extension request.

The property, which sits at 45 Morris Street, has been vacant for several years and is located between the Grasshopper Off the Green building and Wilmont Street. Bakod initially received approval to build 38 apartments, six of which were affordable housing, along with 1,200 square feet of retail space.

"The applicant requested a third extension by resolution dated Oct. 27, 2022. The board denied the third extension request for the reasons set forth in the resolution, one of which was the failure, or really impossibility, to provide for a loading area as approved by the board and candidly as submitted by the applicant in its most recent plans, which were dated for December 2019. There was also a failure to demonstrate adequate parking, which was another condition," Inglesino said.

The lawsuit, which Bakod filed earlier this year, requested that the planning board's decision be reversed and that the extension denial be declared illegal under state law. It asked the board to follow the terms of the original approval and sign off on the plans within two weeks of the case judgment.

Bakod asserts that the board's decision to reject the application also violates their earlier agreement with the Fair Share Housing Center ("FSHC") in its Mount Laurel Declaratory Judgment Action.

According to Inglesino, the lawsuit was the first time that Bakod had ever asserted an affordable housing claim.

"As it turns out, unbeknownst to the board, and to me, and to anyone in my office, the town had entered into a consent order with Fair Share Housing Center dated Aug. 5, 2022, and the town agreed, not the board; the board was not party to the consent order, but the town agreed that the Bakod property would have six affordable housing units," Inglesino said.

Inglesino claims that Bakod officials did not provide the planning board with any evidence of this consent order existing and that the consent order was not part of the record that the board considered in 2022.

Gaus wanted the planning board to take the consent order into account this time around, Inglesino said. "It is our legal view that the judge has overstepped his authority," he added.

The three-hour hearing was dominated by delivery and loading requirements. A Morris Street parking space that Bakod expected to use for deliveries to its planned ground-floor store has been wiped out by the construction of a traffic circle.

Bakod had previously claimed that the project was also hampered by the construction of the nearby M Station commercial redevelopment project and its accompanying roundabout.

The M Station Project removed two on-street parking spaces on Morris Street, a county road, and widened the curb line next to the applicant's property.

Inglesino raised one point of concern, claiming that Bakod had stated that loading functions may be handled by parking spaces on neighboring Wilmot Street, where Bakod holds an easement from the Morristown Parking Authority. However, when the project's engineer, Patrick McClellan, was questioned, he admitted that Bakod has no contract with the Morristown Parking Authority for any of the spaces.

"I mean, if the parking authority controls the parking spaces along Wilmot and you have no permission from the parking authority to use those spaces, how could you possibly build the project?" Inglesino said.

The board attorney also noted that McClellan had not been hired by the applicant but rather by Bakod's attorney, Thomas Scrivo.

"Tonight, I would have expected to hear all of the things that the applicant has been doing to move this forward. The fact of the matter is that the only representative that we have here of the applicant is the applicant's attorney. We don't have any other representative here, so there has been no testimony tonight on behalf of the applicant," Inglesino said.

Ultimately, the board chose to deny the extension once more, with most board members agreeing that no progress had been made on behalf of the applicant.

"They did not make any effort on securing those parking spaces. It's very disappointing," board member Andrea Lekberg said.