Flipping the Legal Switch

The Township is preparing to adopt a redevelopment plan for the municipal complex. 

TL;DR

• Adoption flips a legal switch. It gives the Township powers it does not have today, including the ability to sell 205 Claremont privately and sign legal agreements towards the actual deal.

• The actual project details can be settled behind closed doors in a privately negotiated Redevelopment Agreement, meaning residents may not see the real deal until it is largely complete.

• The plan allows radically different possible uses for the site, which is hard to reconcile with the statutory requirement that a redevelopment plan relate to definite local objectives.

• Council is set to flip the switch without showing the public the analysis supporting the course of action the redevelopment plan enables.

Estimated read time: 5 mins

However, there is a very unusual problem: Township officials have claimed on the record that there is no actual plan yet, describing the document as "almost like a placeholder." Since there is allegedly no plan, the document offers a menu of options instead.  The site could become apartments, assisted living, municipal facilities, offices, and/or a public utility.¹ The plan does not make a definitive choice.

That is a sharp departure from how Montclair's site-specific redevelopment plans have historically read.  They typically commit to a project upfront and require something specific.  This plan asks residents to judge a site with no specific project commitment.  Town Council proponents of the "plan" make it sound simply procedural, but it isn't.

A redevelopment plan does more than describe what might someday be built.  It flips a legal switch.  Once a redevelopment plan is adopted, the Township gains powers it does not have today.²  And those powers attach to plan adoption, even though the Township has not yet formally disclosed the details of a potential deal.

The Real Deal is in the Redevelopment Agreement

And residents won't see it until the deal is done...  The plan does not confirm what will actually be built on the site.  While it presents a set of options, it says that the details will be settled in a contract signed later: "New construction and other improvements shall take place as proposed in this Redevelopment Plan and as detailed in the Redevelopment Agreement,"³ and once a redeveloper is selected, the redeveloper "will be required to enter into a Redeveloper's Agreement with the Township that stipulates the precise nature and extent of the improvements to be made and their timing and phasing as permitted therein."³

The catch is that the Redevelopment Agreement doesn't exist yet, and it's privately negotiated.  Closed-session negotiations normally shield the terms of a project the public already knows about.  But because this plan commits to no project, the negotiations shield the project itself.  This is a legal loophole in the Open Public Meetings Act.⁴,⁵

The Township has said it is in "negotiations with different parties."⁶

Consider what adoption changes.  Before this plan is adopted, a closed-session negotiation about the site can produce a conversation.  After it is adopted, it can produce signed legal agreements: a "Conditional Designation and an Interim Costs Agreement"³ with a redeveloper the Township hand-selects, and then the Redevelopment Agreement that sets the terms and details of everything to be built.

So when do residents get to see the deal?  When it's finished.  The agreement arrives as an attachment to a resolution in the Council's agenda packet a handful of days before the meeting that will approve it.  Unlike an ordinance, a resolution needs neither a second reading nor a public hearing.  It can even be placed on the consent agenda, where items are enacted by one motion with no separate discussion.  It would be a singular vote on a deal that is already done.

Line the sequence up.  A plan that doesn't say what it is for gets adopted.  A redeveloper is hand-selected.  The terms that decide what actually happens to the site are negotiated in private.  The finished agreement appears in a packet a few days before a single vote.

This means the Township can decide to vacate 205 Claremont and lock in the associated terms before residents are ever shown what the other alternatives cost (e.g. renovating the existing building), where the municipal facilities will ultimately be housed, or who will own these facilities.

Adoption is also what allows the Township to sell 205 Claremont without public bidding.⁷  Sell the building, and the Township has to move out of it.

The plan contemplates exactly that sequence.  Its Relocation section assigns the designated redeveloper responsibility, "as may be set forth in a negotiated Redevelopment Agreement," to "assist in coordinating the phased relocation of the municipal building to another location".⁸

Another location...  The plan does not say where, and it unfortunately does not have to, because that half of the transaction happens outside of this redevelopment plan.  Councilor Harrison described one candidate publicly in March.  The Lackawanna Plaza redevelopment plan "includes an office building," and the Township could occupy it, paying "rent for the building."⁹ That plan is already adopted, and it already lists "government" offices among its permitted uses.¹⁰ Whether leasing municipal space is a good idea at all is the subject of a coming piece in this series.  The point here is narrower.  That decision can be settled first, and settled out of public view.

So this "placeholder" is not inconsequential.  It is the prerequisite for everything that follows about the municipal complex.  By the time it is adopted, the decision to leave may already have been made, and the terms of what replaces it can be settled before anyone outside the room has seen them.

But What is a Redevelopment Plan Supposed to Contain?

There is a reasonable response to all of this.  Perhaps a broad framework is normal.  Perhaps the details are supposed to come later.

The statute suggests otherwise.

The section governing redevelopment plans says a plan:

"shall include an outline for the planning, development, redevelopment, or rehabilitation of the project area sufficient to indicate:"¹¹

Sufficient to indicate what?  The statute answers that with a list of eight items, and the first is the one that matters here.  A plan must indicate:

"Its relationship to definite local objectives as to appropriate land uses, density of population, and improved traffic and public transportation, public utilities... and other public improvements."¹²

The statute does not ask a plan to list a menu of options it will permit.  It asks the plan to explain how its land uses relate to definite local objectives.  "Definite"....

Now compare that requirement with a plan that allows radically different futures for the same property.  A municipal building OR roughly thirty-five apartments OR more than sixty assisted-living units OR offices OR an electrical substation...¹³

Those uses do not produce the same population density.

They don't produce the same traffic.

They don't create the same demands on public infrastructure.

And they don't produce the same fiscal outcome for residents.

How do you describe a relationship to definite local objectives when the underlying use has not been decided?

The Planning Director herself identified the problem when she said:

"you can't craft appropriate standards in the redevelopment plan when you don't have a plan."

That is the central contradiction.

The Township says the document is enough of a redevelopment plan to be consistent with the Master Plan.  At the same time, it says that there is not yet enough of a plan to craft appropriate standards.  The Planning Board's vote is hard to square with the statute it is supposed to uphold.

I'm not a lawyer, and whether these deficiencies would affect the legal validity of an adoption is a question for one.  But residents do not need to have passed the bar exam to understand the sequence.

Council adopts a plan that doesn't confirm a specific project.  Then, it designates a redeveloper, who signs binding legal agreements.  Behind closed doors, the Township and the redeveloper negotiate the Redevelopment Agreement, which contains the specifics of the actual deal and what will be built.  The finished agreement is attached to a resolution in a packet a handful of days before the vote, and can be approved in a single motion, with no separate discussion.  At every step where the real decisions are made, the public is either absent or reading a finished document.

That is what makes this more than just a procedural vote.

These powers attach to plan adoption.

The Net Effect

We have been told there is no plan.

But we have also been told that architects are engaged and that the Township is in negotiations with "different parties."

Those two facts are difficult to reconcile with the idea that town officials aren't actively working towards something concrete.

The Township may not have formally selected a final use, design, or transaction structure; but it is already taking steps behind closed doors that can solidify each of those outcomes.

Adopting this redevelopment plan would flip the legal switch that allows that process to move further into binding legal agreements, negotiated out of public view.

And that brings me back to the same principle that has guided my examination of the municipal facilities decision from the beginning:

Show the work.

Before Montclair adopts a plan that lets the real decisions be made in private, residents deserve to know:

What analysis supports this being the right course of action?

A redevelopment plan should follow the answer to this question; not impose a pre-determined outcome.