To the Editor:
There is certainly a lot to “unpack” in Mayor Mike Kelly’s letter to this publication yesterday. However, to the extent that he misleads the people of Chatham Township, seeks to obfuscate his total failure to lead, and, in a truly bizarre development, deems to provide us with his legal analysis, we will address each of his points in turn.
- We’ll begin with something unmentioned by him. Confronted with an onslaught of public pressure that started with our April 3rd letter, he finally backed down and cancelled the ill-advised – and legally unsound – Planning Board meeting that was to be held tonight. Everyone in town (well, almost everyone) understands that this was just a plain stupid idea from the start. Nonetheless, after members of the Township Committee repeatedly told residents – including over this past weekend – that there was some legal obligation to hold this meeting or that they were required by the Court to hold this meeting, it was cancelled anyway. How did that happen if they weren’t allowed to cancel it? Obviously, that was a lie. There is no court in New Jersey that would require a Planning Board meeting to be held right now or that would ever prejudice a municipality for failing to hold a meeting in the face of this pandemic. The Case Management Order that Kelly cites literally says this (but we’ll get to that later).
- Mayor Kelly takes offense at our reference to his wildly unpopular affordable housing agenda. He likes to push blame for the current decisions backward to past committees, and play the victim who is just being forced, against his will, to implement someone else’s agreement. However, and setting aside that Mayor Kelly was actually on all those committees that he tries to blame, no other committee or mayor hatched the irresponsible scheme to bulldoze a sensitive, and previously protected, steep slope watershed property adjacent to the Passaic River for a high-density development. That is the referenced wildly unpopular agenda. It is his and his alone. Indeed, self-proclaimed “moderate” Mike Kelly is the only member of the committee to vote in favor of exploring condemnation and eminent domain to seize private property in order to advance this agenda. The River Road development plan is yours, Mike. Own it!
- Amazingly, Mayor Kelly continues, even now, in trying to defend his absolutely terrible – frankly offensive – decision to hold the jam-packed March 12th Township Committee meeting by simplistically stating that his meeting was “entirely within size limits for public gatherings at that time.” This argument is so absurd and so misaligned with common sense and the readily-available warning signals as to what was taking place at the time that we won’t take up space here to dissect it. Suffice it to say that well before that meeting, all responsible people, including Dr. Anthony Fauci, the President, and Governor Murphy, were calling for 6-foot social distancing even if, technically, gatherings of a certain size were permitted (until they were banned the next day). Allowing that meeting to take place was foolish. The fact that Mayor Kelly would still defend it as appropriate today is shocking.
- We now come to the point where Mayor Kelly presumes to instruct us, and Chatham Township, regarding the law – expressing his surprise that we, in his expert opinion, do not understand the law. We wonder whether Mayor Kelly has actually read the document that he refers the people to or, more importantly, the relevant statutes (and currently-in-place emergency legislative actions and Executive Orders). Clearly, he does not understand them. He asks us to look to a bulletin from the NJ Division of Local Government Services providing guidance to ensure “continuity of Land Use application procedures” while New Jersey remains subject to the emergency Executive Orders that are effectively locking down this state in order to “ensure due process is afforded.” What he doesn’t seem to understand is that the important “due process” in question pertains to the fact that, as mentioned in the DLGS document, planning boards are required to grant or deny applications pending before them within prescribed times (unless, of course, the applicant consents to an extension). Put simply, what this means is that “public” meetings may be held to the extent necessary to allow the Board to grant or deny “applications pending before it” within the time prescribed by law (and then only IF the applicant will not consent to a different time). There clearly is no requirement to convene a meeting in order to introduce major new, and hotly contentious business such as advancement of a new redevelopment plan that is inconsistent with our current master plan. Indeed, the very document posted by Mayor Kelly further provides that “Planning Boards and Zoning Boards of Adjustment are also reminded of their continuing obligation to comply with N.J.S.A. 10:4-6 (the “Open Public Meetings Act”)”.
- We all know what the Open Public Meetings Act is. It’s the law that requires certain meetings to be open to the public so that citizens can come forth and let their voices be heard. So what does our state government have to say about that in this time of crisis? Let’s all actually read the law and walk through it step by step. On March 20th, the Legislature passed, and Governor Murphy executed, a bipartisan-sponsored emergency measure (No. 3850) addressing this very issue (i.e., “concerning the conduct of public meetings during periods of emergency” and expressly supplementing the Open Public Meetings Act). In sum, because there are certain affairs of the state that must continue even during a pandemic, this emergency measure “allows public bodies to conduct meetings … by electronic means during periods of emergency.” “Allows” but certainly does not “require”. Accordingly, the statute authorizes a public body to conduct a meeting and receive public comment by means of communication or other electronic equipment during a state of emergency. Great. So such meetings are “allowed” to take place. We get it. Let’s keep reading. In the NEXT PARAGRAPH this bipartisan bill, which, again, is currently the law governing the state of New Jersey, explicitly (and very clearly) provides that it “requires that public bodies who exercise this option [i.e., electronic meetings] limit, to the extent practicable, the public business conducted at that meeting to matters necessary for the continuing operation of government and that relate to the applicable emergency declaration.” In other words, while public bodies are “allowed” to conduct “public” meetings by electronic means during this crisis, they are “required” by a bipartisan act of the Legislature and Governor to limit the public business at any such meeting to matters absolutely necessary to keep the government running and address the crisis. Here’s where leadership, and just plain old good judgment, comes in to play. Advancing consideration of a highly divisive proposed development, that is in conflict with our current Master Plan and carries with it potentially massive - and irreversible - environmental consequences, is not a matter necessary for the continuing operation of our government and is certainly not related to the current state of emergency.
- Mayor Kelly questions our legal knowledge on the basis that “the Mayor does not set the agenda or set the schedule for the Planning Board.” That’s not the point Mr. Mayor. It doesn’t matter who sets the agenda or schedules the meeting. You’re the Mayor. You set the agenda for the Township as a whole (supposedly). And right now, that agenda should be 100% focused on one thing: providing absolutely essential services while facilitating all residents’ (and non-resident municipal employees’) health and well-being. Not advancing new, and highly controversial business before the Planning Board. Again, read the documents that actually govern this state (and the litigation with Fair Share Housing). Paragraph 6 of Governor Murphy’s currently-in place Executive Order allows the executive head of any instrumentality of the State government “to waive, suspend, or modify any existing rule, where the enforcement of which would be detrimental to the public welfare during this emergency.” While, the Township Committee is not technically an “instrumentality of the state government,” it follows that you possess similar authority within the boundaries of Chatham Township.
Show some leadership, Mr. Mayor. Do the right thing and just order that there will be no more meetings on new, non-essential business during the crisis. Period. No one will challenge this. Do you actually think that a judge in Morris County Superior Court would order that a Planning Board meeting be held or would later punish the Township if it wasn’t held right now? The “Case Management Order” that you refer people to expressly allows this. While Paragraph 5 of that agreement, which has been selectively and misleadingly circulated on Facebook by Mayor Kelly’s ardent social media supporters, provides dates certain for various events, the very next paragraph (i.e., Paragraph 6) of the Case Management Order provides, in its entirety, as follows:
“The Court, the Special Master and Fair Share Housing Center, Inc, recognize that in light of the National and State Emergencies related to COVID-19, that [sic] the Implementation and Compliance Schedule may be subject to modification to address this health and public safety crisis. In the event that an Action Item is cancelled because of this health and public safety crisis, the Township shall promptly notify all parties and inform of the rescheduled date.”
It’s not even a question of asking permission or seeking an extension. Given the extreme nature of this crisis, meetings and deadlines can, and should, be cancelled. You just have to notice the Court and NJFSH!
It is difficult to believe, and deeply troubling, that we are actually having this debate. This seems like something that we could all get behind. We understand that there are different views regarding the best plan for addressing the affordable housing dilemma, and that different people support different political candidates. Indeed, we will need separate correspondence to discuss our views on this issue in greater detail – although we can preview that we do not view telling people to “google” what happened in other communities that have little similarity to Chatham Township (in population, physical size, available land) to be sound leadership or the basis for a legal strategy and that neither of us has ever suggested that the Township should sue anyone (it’s on video Mr. Mayor. Never happened). But for now, we would hope that all can agree that this fight can wait until another day. People are coping with the virus and fear of getting the virus. Businesses are suffering. Our older residents are nervous. Let’s table the contentious – and certainly non-essential – affordable housing debate until the pandemic abates. In its place, let’s focus on the people of Chatham Township first.
Mark Hamilton and Ashley Felice