LIVINGSTON, NJ — Following a unanimous vote on a zoning ordinance that the Livingston Township Council was proud to come to an agreement on, the members of the governing body were less pleased to approve a second zoning ordinance on Monday that they were not in favor of, but had to adopt in order to avoid a lawsuit.

At the recommendation of counsel, the governing body voted to eliminate split-lot zoning in the area of Joseph Kushner Hebrew Academy and an adjacent lot that was previously approved for the Livingston Square development by Pulte Homes. The cause of concern among the council is that the four-story Livingston Square townhomes include 51 affordable-housing units owned by Kushner that will not have elevators.

Until now, the council has kept the hearing open on this ordinance in hopes of encouraging the developer to re-design the footprint of the affordable buildings to include elevators.

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“The hope was that by holding [the ordinance] up, we might put some pressure on Pulte and Kushner to put in an elevator—which we just discovered they were not putting into the property—and it did not work,” said Township Attorney Sharon Weiner. “They have the law on their side…The fire chief wrote a letter and the construction officials, but we have nothing in the law that can compel them if they choose not to do it.”

James Mullen, Director of Land Entitlement Northeast Corridor Division for the Pulte Group, spoke during a public hearing on this ordinance in April to inquire about the hesitation, stating that the amendment to the zoning map was simply “to allow all of the residential property to be in a residential zone and the school zone to be in a school zone.” Speaking on behalf of Kushner was construction consultant Jeff Weinflash, who stated that “elevators are not code required and it was specifically designed that way.”

Weinflash also pointed out that the developer applied to add affordable units “to benefit the municipality,” adding that “those units were going to be rented and were going to continue to be owned by the school.”

“It’s not a matter of deserving an elevator; it’s a matter of cost to those people…It’s a cost to us as well,” said Mullen, who added that he did not feel the additional cost of maintenance for the elevators was necessary. “There are many apartments throughout the state; I’m sure that many there are some that don’t have elevators.”

Weiner responded at the time that the governing body finds it “very troublesome” that there are no elevators planned in the affordable buildings and that the council was “not inclined to move forward” until that issue was addressed.

“We put in another development down the road that was a three-story affordable building of 12 units,” she said. “They also didn’t want to do it, but when the town asked that an elevator be put in, they did. We’re asking the same thing [of Kushner and Pulte]…

“We’re responsible for what is being built in town. This is part of our affordable housing plan and we’re very concerned that there’s no elevator in these apartments…Putting an elevator in a four-story building where people will be living with children, some disabled—people are not going to be able to get up to the third and fourth floor or even the second floor. How are they even going to move in? How are they going to bring their baby carriages up?

“We are showing our displeasure. When the original project was built, the affordables and the market rate were all in the same building and there was no issue about an elevator. You asked the town to approve putting the affordables separate, we agreed to that, and now you’ve come back and said you’re not putting in elevators. We’re very unhappy about that.”

Following Monday’s final hearing, during which there was no public comment on this topic, all five council members were reluctant to vote in favor of the ordinance, but did not feel that there was another choice.

“This is a very difficult one to vote yes on,” said Councilman Michael Vieira. “It’s shameful that a four-story apartment building has no elevator, but it’s the law, and they’re following the letter of the law. The letter of the law needs to be changed somehow, however, I’m not going to put this town at risk of a lawsuit. I’m also asking the developers to maybe have a heart. If something happens on that fourth floor and emergency personnel needs to get up there fast, it’s life or death.”

Councilman Ed Meinhardt also noted that all of the stairs are located outside the building, which puts the stairs in danger of freezing during the winter and the residents at risk of slipping. All council members stated that if they could vote no on this ordinance, they would. 

“The law is not on our side, but we’ve been under the advise of legal counsel and we have a duty to our residents not to vote no and open ourselves up to a lawsuit when the other side is in compliance with the law,” said Mayor Al Anthony.

Read the full ordinance, entitled Ordinance No.7-2019, by clicking HERE