By JOHN T. WARD
At issue: whether the town had boxed itself in legally, getting nothing in return.
The controversy, which arose during Wednesday night’s semimonthly borough council meeting, centered on an easement, or legal right to cross someone else’s property, that would permit tenants of the 24-unit Riverwalk to drive into and out of the site from the adjoining East Side lot.
Riverwalk, proposed for Mechanic Street, won planning board approval in 2006 with a design calling for underground parking, street-level retail space and three stories of residences. In granting approval, the board told developer Tony Busch Sr. his tenants could drive into and out of the site through the nearby East Side lot.
The impetus for the grant, borough Administrator Stanley Sickels said Wednesday, was to eliminate the need to have all traffic leaving the building enter Mechanic Street, which is a one-way to Broad Street, and thus add to downtown traffic.
Six years later, Busch went to the zoning board with changes to the plan, this time calling for ground-level parking for 41 cars beneath the residences, with the elimination of commercial space. In granting approval, the zoning board affirmed the earlier greenlight of the access plan, redbankgreen reported at the time. But the approval was conditioned on Busch getting an easement from the town.
The matter arose Wednesday night when the council took up an ordinance that would authorize the easement. Here’s the ordinance: rb-2016-18
Bill Meyer, a lawyer who owns 12 Monmouth Street, objected to the grant of the easement without the town getting anything in return.
“Certainly no [lawyer] in private practice would ever do that,” he said. “It closes options to us if we ever wanted to do anything with that property.”
For example, he said, if the borough wanted to erect a building on the parking lot, it would either have to negotiate a new arrangement with Busch, or draw plans around his access.
Meyer said the absence of “consideration,” or payment of some kind, made the deal legally “invalid” and “foolish.”
Borough Attorney Jean Cipriani agreed that there had been no financial consideration, but noted that the agreement reduced a parking deficit that would have arisen if the 2006 plan was built, which she said was a benefit to the borough.
When Council President Cindy Burnham asked whether it wouldn’t make sense for the borough to sell an easement, rather than give it away, Cipriani agreed, with a caveat.
“Yes, as a general rule,” she said. “It just doesn’t make sense in the specifics of this case.”
Busch told the council the easement “doesn’t encumber the town” in any way. “They have complete use of the parking lot,” he said. He also said the planning board wanted the agreement to keep garbage trucks that service the building off Mechanic Street, and to give fire equipment access to the site.
The council voted to introduce the ordinance, with Burnham abstaining “for the reasons Mr. Meyer brought up,” she said. “I just feel it’s going to be a problem.” A public hearing and possible adoption vote was scheduled for September 28.
The Riverwalk property is located between the Independent Fire Company house and Cardner’s Barber Shop. A commercial building on the site would be demolished, though no timetable for the start of the work has yet been drawn up, Busch told redbankgreen.
Meantime, the fate of the firehouse is uncertain. The borough conducted an auction of the site last month, attracting a top bid of $392,587 from a Little Silver man, but the council has not yet acted on whether to accept the bid, and there was no discussion of it Wednesday night. Also pending: an offer by Red Bank RiverCenter to pay for the demolition of the firehouse and pave over its footprint for additional parking.