FLEMINGTON, NJ - Flemington is brimming with potential change - new builds and redevelopment abound, some projects being welcomed with open arms and others being tied up in lengthy court battles.

Through it all, the governing body is driving this evolution, but the road is bumpy.

Mayor Betsy Driver and two thirds of the borough council seem to be in lock step on almost all matters, while two councilmen, Michael Harris and Chris Runion, are on a different path.

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In general terms, the divisive issues seem to be resident participation, representation and transparency.

At the last council meeting, during the second reading and public discussion of the “D” variance ordinance, their differing points of view were evident.
A "D" variance is a request to use or expand a property in a way contrary to the borough’s zoning plan. In applying for a “D” variance, the applicant must demonstrate that there are important reasons to deviate from the zoning ordinance.

Flemington Ordinance 2020-1 eliminates a resident’s ability to appeal to the town council to overturn a planning board’s approval of a “D” variance.
After a 58-minute discussion that included an eight-minute point/counterpoint essay written and read by Runion, the motion passed four to two, with Harris and Runion casting the dissenting votes.

Ordinance 2019- 21, which gave Flemington residents the opportunity to appeal a “D” variance approval to the borough council, was passed on Oct. 28, 2019. The council vote was 4-2 in favor and, according to Driver, “It was used zero times.”

In the three years prior to the passage of the appeal law, the planning board had granted a total of five use variances.

In its recommendation to the borough council, the board stated, “These use variances were granted based on the board’s evaluation and analysis of the requirement of the Municipal Land Use Law.”

The board also noted that its members are appointed to best represent and understand the MLUL and specifically trained.

“We question what training and knowledge the governing body would rely upon to hear an appeal,” the board said.

The board concluded that while the appeal process is permitted under the MLUL, “We cannot give our recommendation to such a mechanism with the potential to allow outside influences to control determinations over such an important provision of the law.”

Those in favor of the new 2020 ordinance contend that if the planning board legally approves a “D” variance and it is challenged in the courts, the issue will only be viewed in terms of the legality of the approval, not what is in the best interest of the community.

Those against the ordinance said giving the council a chance to amend, reverse or send the appeal back to the planning board could avoid the courts involvement.

Harris opened the discussion by fighting against other members of the governing body “in the interest of openness” to allow the public comment period to remain open so that residents could respond to council comments. With the backing of borough attorney Tara D’Angelo, he was able to allow people in attendance to ask questions and offer comments on council opinions.

Resident Lois Stewart opened the session.

“I think it’s in the best interest of the public to have this opportunity available to them, so I would ask you not to eliminate that option,” she said.

Stewart added that the appeal process through the council gives the public a voice without the cost of hiring an attorney.

“That’s a big factor in our town,” she said, noting that Flemington has the lowest per capita income in the county.

The mayor responded, saying the public will still have a right to appeal, but this ordinance eliminates an extra step because “no matter what this governing body decides it’s gonna end up in court, no matter what.”

She added that the governing body could be sued for overturning a planning board variance approval, and that would cost tax dollars.

Council president Caitlin Giles-McCormick weighed in, saying that her biggest concern is that when a resident appeals a decision through the council, it is being done after the fact.

“We want people to be involved earlier in the process,” she said.

Giles-McCormick agreed with the mayor that there is almost no circumstance under which a developer granted an approval by the planning board would not go to court if the council overturned it.  

Runion read from a statement, saying that if a resident decides to appeal a planning board decision to the council for good reason and the council agrees, the developer may be content with the outcome.

He went on, “if the developer decides to take the borough to court because of a decision made by the governing body – with good reason – and on behalf of a resident it is sworn to serve, then I say bring it on.”

Calling the ordinance a “power grab by the governing body,” Runion said keeping this ordinance in place, “enables the governing body to do its job and that is to represent those they were elected to serve and not catering to special interests.”

The ordinance allowing a council appeal is not unique to Flemington, according to Runion, as many local municipalities, including Raritan Township and Somerville plus numerous others across the state provide that option to their residents.

Driver maintained that the council appeal process is an extra step and without teeth. The governing body cannot rule in opposition to municipal land use law, she explained, so if the planning board approval was legal, you’re just spinning your wheels and spending tax dollars to defend something that perhaps cannot be defended.

Addressing the legal issue, Runion countered that many of the items that are required to be “proven and demonstrated” by an applicant for a use variance are very subjective.

“So, the planning board may say the burden has been met,” he said, “but the council may find differently.”

He added, “I just don’t think we can pretend that special interest and political interests don’t play a part in this process. This mechanism is in place to afford everyone to have a voice. Without this ordinance, only the rich have a voice.”

Stewart also remained adamant.

“The council is supposed to uphold and do what’s in the best interest of this community, and, in the past, I have not seen that has always been the case with the planning board,” she said. “This [ordinance] gives the public the opportunity to raise the appropriateness of a decision to the governing body, which has been elected to do what’s best for the citizens of this town, not what’s best for the developer.”

Resident Joanne Braun asked, “what’s wrong with agreeing with Chris [Runion] if there’s one extra step that avoids conflict?”

Pointing to the council, she noted that they were once on her side of the room so they should understand that sometimes government can hear but not listen to the public.

Resident Robin Lapidus said she didn’t see how this ordinance would “help us move forward.”

Giles-McCormick explained that part of the council’s job is to “balance and fit everything together.”

“We need commercial investment and jobs,” she said, adding that she was still struggling with how the current appeal process doesn’t make this more difficult for everyone.

Harris called the standing appeal process “a safeguard for the community,” offering checks and balances and “a tool in our tool box.”

What does the tool do, questioned Giles-McCormick, since there’s not meat behind it, there’s nothing binding. She said she wants people involved in the process, but she wants them to do it earlier by attending planning board meetings.

Runion pointed out that talking to the planning board doesn’t mean they’ll listen.  

Council vice president Kimberly Tilly jumped in saying, “You can’t please everybody.”

Runion came right back.

“You can’t please everybody, but you should represent everybody,” he said. “That’s what this does, it allows for representation of people who can’t afford a voice in the court system.”

Driver dismissed that idea.

“If everybody was interested in the ‘voice’ they would be here telling us,” she said noting that there were only five property owners and three residents at the meeting. “I don’t believe they represent the entire community.”

Harris offered that while running for office, what he heard is that people don’t come to council meetings “because they don’t see the benefit, they don’t believe they’re being heard.”

Harris and Runion broke from the pack a few weeks prior when they refused to attend a council retreat led by the borough attorney. One of the main reasons for the boycott was that even though the announcement of the meeting was legally noticed they felt it was not posted at a level sufficient to raise awareness among residents who might be interested in participating.

And while there is no law that would disallow it, there was also an issue about the meeting being held at the attorney’s office, outside of town.