New Sparta Planning Board Begins New Diamond Chip Mega-Application Hearings

SPARTA, NJ – After nearly two years the Diamond Chip Realty application hearing began on Wednesday to a packed house.  It was standing room only with people watching from the municipal building’s entrance hall.

Much has changed since the planning board sent DCR back to the drawing board in July 2022.  The applicant’s lawsuit had eight members removed from the hearing.  Another member had resigned.  Only planning and zoning board member Michael Sylvester and Ernie Riegstad remain.  Two newly appointed members, Joan Furman and Brian Zimmerman were on the dais, joined by zoning board chair Ken Laury and alternate member Michael Leondi.

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Also, new to the dais was Sparta Township’s traffic expert, Brian Intindola.

Sparta resident and attorney Anand Dash was represented by attorney Steve Warner and Professional Planner Peter Steck.  The professionals have been funded by donations to Sparta Responsible Development.

The first order of business was for the special planning board members to appoint leadership. Despite DCR attorney Steve Gouin’s preferences , Laury was selected to be the chair and Sylvester the vice chair.

Sparta Planning Board attorney Tom Collins announced Furman and Zimmerman were not conflicted and would be part of the DCR hearing despite a letter from Gouin challenging their eligibility.

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Gouin and Warner were invited by Sparta Planning Board attorney Tom Collins to give opening remarks.  Gouin went first with “a recap of how we got here,” discussing the revisions they made to the plans.

“We’re just excited to move forward with our application,” Gouin said.
Warner walked through several predicate matters that needed to be settled before testimony could begin.

He said he was” pleased” that the planning board members were not disqualified and that selection of “officers” was not restricted.  Warner challenged Gouin’s assertion the planning board had only 90 days to make a decision.

“You have at least 120 days because, as your board planner has already determined, there is at least one bulk variance at issue along with this site application; a significant parking deficiency,” Warner said.

Warner said they contend there are “other variances at issue not the least of which would be a D variance” that would require a hearing at the zoning board.

Addressing another matter in Gouin’s letter, Warner said he and another attorney Robert Simon represent Dash and not “perhaps anyone who clicked on the Facebook page for Sparta Responsible Development.” Warner said Dash is required to submit questions through his attorneys but any member of the pubic should be free to raise questions and that Gouin’s attempt to say all of Sparta Responsible Development were represented by Warner and Simon was a “thinly veiled attempt to silence" the public.

Warner made the case that the legal notice made by DCR was defective because it announced their application as a “fully conforming warehouse.” Citing the “Pearlmark case and its progeny” Warner said that was misleading, especially in light of the appellate court’s ruling that the “use” was still a matter to be determined by the planning board.

“Accordingly, the public notice is both procedurally and substantively deficient, divesting the board on jurisdiction to begin hearing the application in May 1,” Warner said.  “There are no close counts in the law of notice. You can’t begin because everything there after will be a nullity and you’ll have to begin again.”

Gouin said their legal notice was sufficient, with “a commonsense description” as required.

“Anybody in the public reading that notice would not have any question as to what this application is about,” Gouin said…“You put in your notice what you are seeking approval for…Our notice was perfectly adequate under the MLUL.”

Collins asked Warner and Gouin to “air out” their position on whether the “proceedings start anew” or the record of the five meetings are allowed to be part of these new hearings.

Collins asserted the new members had certified they read all the transcripts.  Warner said reading “dry, stale transcripts,” does not allow the planning board members the opportunity to “see and hear” the testimony "in real time" and assess the experts' "credibility" as a “quasi-judicial” board.

Warner argued the five meetings took place two years ago. Calling these proceedings “unique,” Warner quoted DCR’s attorney Adam Garcia from a law news article regarding the “large scale disqualification” of members as being “unprecedented.”

Next Warner argued the five meetings were void because the former chair Andrew Riena was a "member" of the Sparta Responsible Development's Facebook page. Because in Judge Stuart Minkowitz’s ruling, eight planning board members were disqualified because of their “membership” in Sparta Responsible Development’s Facebook page, Reina had tainted the previous five hearings.

Warner cited Randolph v Brigantine and Haggerty v Red Bank as cases on point.

Another rationale presented by Warner to start again is that the application has been “substantially amended” twice since the last hearing.  He said “it’s well settled law” including decisions from the Supreme Court, that it becomes a new application, even if the changes have made the project smaller.

“A substantial change is a substantial change, whichever way it goes,” Warner said, wrapping up his argument of four reasons why they “should start anew.”

Gouin said he wanted the “full record of this case” to be considered. He said they had to amend their plans because of comments from the planning board members and the public in 2022.

“I’m not sure what fact-finding purpose it serves to exclude [the previous meetings],” Gouin said.

The crowd snickered when Gouin tried to argue that the “shield” they had used to get eight members removed could not be used as a “sword” to support the need to start over.  Warner concluded his remarks by saying what Gouin said “is not the law.”  He got applause when he said, “what’s good for the goose is good for the gander.”

In summarizing to the planning board members, Collins agreed the court said in their ruling that the application was new because it was substantially revised.  Another reason Collins said the hearings should start anew is because of Reina’s conflict.

Laury asked for a motion to have the hearings start over.  Brian Zimmerman moved and Ernie Reigstad seconded. The board members voted 5-0 to have the hearings start from the beginning.

After hearing from both attorneys, Collins deemed the notice sufficient and in line with the Municipal Land Use Law and case law requirements, without discussion with the board members.

“The objection by Mr Warner, though well argued, is really not sufficient basis for determining that the notice is defective,” Collins said.  “The applicant has the burden of proof that they comply with the ordinances” and Dash will have the opportunity to make arguments during the hearings.

Warner questions the lack of input from the board members but Collins said “Boards don’t vote on the notice. It’s a question of law. And we understand you object.”

Collins said he agreed with Warner that the application will have 120 days from the start though he said he believes the case will even go beyond 120 days with the need for extensions from the applicant “as long as the case is being processed reasonably.”

DCR started with their architect Richard Saunderson.  He presented testimony about the new scheme.  The proposed development is back to two buildings with a total of 698,000 square feet and 102 truck bays in a center courtyard, 51 in each building.  The new plans include four track sidings “used for the storage of rail cars.”

Car parking is in the front.  The smaller building is designed as a “storage warehouse” and the larger one is a “flex warehouse” Saunderson said.

The architect discussed the new plans in relation to the previous planning board’s request for a more “campus-like” setting, as required in the ordinance. The public had the opportunity to ask questions but they were cut off per the planning board’s announced total time limits.

Laury announced at the beginning of the meeting there would be no new testimony after 9:30 p.m. and the meeting would adjourn at 10 p.m.

The next DCR hearing will be June 5.

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