105 Grove Street, Suite 1

Montclair, NJ 07042
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973.954.2677

February 6, 2018

Ms. Patricia Carcone

Planning Board Secretary
Hoboken Planning Board
94 Washington Street, Second Floor
Hoboken, NJ 07030-4585

Re: Ordinance Z-B4: An Ordinance To Amend And Supplement Chapter 196 Of

The Hoboken City Code Entitled “Zoning” Article IX “General Supplementary
Regulations” At §196-31(C)(2)(g) “Feather Flags”

Dear Ms. Carcone,

The above referenced matter was referred to our office for review and comment
in advance of the Hoboken Planning Board’s February 14, 2018 Public Hearing.
Our review included the following:

 January 19, 2018 Correspondence from the City Clerk to the Hoboken
Planning Board appropriately referring this matter for review and
comment. {Please refer to the MLUL context for this referral below.}
 City of Hoboken Resolution #A11, which referred this matter to the
Hoboken Planning Board for a Master Plan Compliance Review.
 Ordinance B-4, which was introduced by the Hoboken Governing Body
on January 17, 2018.
 Hoboken’s 2004 Master Plan
 Hoboken’s 2010 Master Plan Re-Examination Report
 City of Hoboken Zoning Ordinance; Chapter XXIV
 2015 & 2016 Hoboken Zoning Board of Adjustment {ZBA} Annual Reports

Context

The Hoboken Zoning Code provides standards for Signs and Signage under §196-
31. Relevant Definitions are provided by §196-31(A); e.g.,
 Feather Flag Sign: Temporary advertising signs made of lightweight cloth
that are supported by a lightweight freestanding pole or frame.

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Figure 1. Example of Feather Flags

Signs Permitted in All Districts is established by §196-31(C)(1)(a-i)

 Feather Flag Signs are not included among the Signs Permitted in All
Districts.

§196-31(C)(2) provides Signs Prohibited in All Districts and §196-31(C)(2)(g)

provides language specific to Feather Flags in the context of Signs Prohibited in All
Districts as follows:

 (g) Feather flags, except when the property is a business establishment in

a zone where commercial and retail are permitted uses, and exterior
signage ordinarily allowable under this section is not permitted pursuant
to landlord or condominium association prohibition, and the property has
no more than two street-facing windows, not inclusive of doorway or
transom, with total display area totaling less than 10 square feet. In the
situation where feather flags are permitted pursuant to this exception, said
signs shall: {underlining added for emphasis}
o [1] Be displayed only on the business premises; and
o [2] Be limited to one per business; and
o [3] Pertain to the business on the premises; and
o [4] Be displayed only during hours of operation; and

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o [5] Be placed in a manner so as to ensure pedestrian safety; and

o [6] Not block, impede or in any other manner interfere with the
pedestrian walkway; and
o [7] Not be more than 12 feet long, or greater than 36 inches in
width; and
o [8] Not block any windows or doors; and
o [9] Be secured in a manner that prevents displacement from the
wind.

As articulated in the Governing Body’s Resolution #A11, the proposed

Ordinance Amendment would add the following language to §196-31(C)(2)(g):

 (2) When utilized by a non-profit organization organized under 501(c)(3)

of the Internal Revenue Code on private property in accordance with the
following regulations: {underlining added for emphasis}
o (i) The feather flags may be utilized for a total of five (5) days,
either consecutive or non-consecutive, during any thirty (30) day
period; and
o (ii) The organization must apply to the Zoning Officer for
permission to utilize a feather flag in accordance with this section;
and
o (iii) Along with the initial application, the applying entity must
include proof of the organization’s 501(c)(3) status. The applicant
shall provide updated proof on an annual basis; and
o (iv) The Zoning Officer and/or the Zoning Officer’s Designee shall
be responsible for enforcement of this exception to ensure
compliance; and
o (v) The following conditions shall apply to all flags displayed in
accordance with this section;
 a. Limited to one (1) per organization; and
 b. Pertain to the organization; and
 c. Be displayed only during hours of operation; and
 d. Be placed in a manner so as to ensure pedestrian safety;
and
 e. Not block, impede or in any other manner interfere with
pedestrian walkway; and

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 f. Not be more than twelve (12) feet long, or greater than

thirty-six (36) inches in width; and
 g. Not block any windows or doors; and
 h. Be secured in a manner that prevents displacement from
the wind.

NOTE: §196-6 of the Code provides Definitions. No definition for non-profits is

provided in this section of the Hoboken Code.
NOTE: Although our Planning Desk References did not provide a specific
definition for non-profits {probably because the term refers t a tax classification
as opposed to a land use}, The Complete Illustrated Book of Development Definitions
{Fourth Edition} does offer terminology that is instructive in the context of this
Compliance Review. Specifically, it provides the definition for Eleemosynary or
Philanthropic Intuition, which is traditionally used in land use parlance:
{underlining added for emphasis}

A private or public organization that is organized and operated

for the purpose of providing a service or carrying on a trade or
business without profit and for charitable purposes. Comment:
Eleemosynary or philanthropic organizations generally provide
services or goods to disadvantaged persons. Their non-profit
aspects are recognized by the Internal Revenue Service.
However, these uses should be located in areas according to the
activities that are conducted on their premises rather than
according to their nonprofit status. For example, a nonprofit
fund or foundation that distributes grants functions as an office
use; however, a nonprofit organization that trains disabled
individuals to restore and repair furniture should be located in
an industrial area. The primary factors in locating these uses
should be the type of use or service it provides, and the actual
impacts on the surrounding area.

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Context for Review by the Hoboken Planning Board

In accordance with N.J.S. 40:55D-62a, a zoning ordinance may only be adopted

after the planning board has adopted the land use and housing plan elements of a
master plan. This is required because; the ordinance must be consistent with that
plan. In order to meet the requirement of consistency, any proposed zoning
ordinance or amendment thereto must be referred by the governing body to the
planning board. The statute requires that every zoning ordinance must "either be
substantially consistent with the land use plan element and the housing plan element of
the master plan, or designed to effectuate such plan element." The section refers to the
provisions of N.J.S. 40:55D-26a, which provides as follows:

a. Prior to the adoption of a development regulation, revision, or

amendment thereto, the planning board shall make and transmit to the
governing body, within 35 days after referral, a report including
identification of any provisions in the proposed development
regulation, revision or amendment which are inconsistent with the
master plan and recommendations concerning these inconsistencies
and any other matters as the board deems appropriate. {Underlining
added for emphasis}
b. The governing body, when considering the adoption of a development
regulation, revision or amendment thereto, shall review the report of
the planning board and may disapprove or change any
recommendation by a vote of a majority of its full authorized
membership and shall record in its minutes the reasons for not
following such recommendation.
c. Failure of the planning board to transmit its report within the 35-day
period provided herein shall relieve the governing body from the
requirements of this subsection in regard to the proposed development
regulation, revision or amendment thereto referred to the planning
board. Nothing in this section shall be construed as diminishing the
application of the provisions of section 23 of P.L. 1975, c. 291 (C.
40:55D-32) to any official map or an amendment or revision thereto or
of subsection a. of section 49 of P.L. 1975, c. 291 (C. 40:55D-62) to any
zoning ordinance or any amendment or revision thereto.

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As stated in the 2017 Edition of New Jersey Zoning & Land Use
Administration, “Plainly read, the statute requires that the
reasons for inconsistency be established when the
inconsistent ordinance is adopted.... The purpose of the
resolutions is to inhibit inconsistency while preserving
flexibility. By requiring contemporaneous passage, the law
not only provides an avenue for public scrutiny of the action
(including a record for judicial review) but, perhaps more
importantly, ensures that the inconsistency is clearly
recognized and rationalized when the action is taken. There
is a significant difference between contemporaneous debate
and post hoc rationalization.”

Analysis of Consistency Between the Proposed Ordinance Amendment & the

Hoboken Master Plan(s)

A review of the 2004 Master Plan and 2010 Re-Examination Report provides
evidence of general and specific inconsistency between the proposed Ordinance
Amendment and the Master Plan(s). While each of the Master Plan Elements
were reviewed as part of this analysis, the following section of this Memo will
focus on the most relevant Elements, and sections, of the Master Plan(s).

City of Hoboken 2004 Master Plan

Key Ideas and Initiatives

Design: New construction is taking place in and around Hoboken’s many historic
buildings and neighborhoods. The goal is not just to preserve what is best, but
also to require high-quality design that will build the historic districts of the
future. {Please refer to Page 12} {underlining added for emphasis}
 “Green” architectural standards will create a new, environmentally
sensitive Hoboken design prototype to complement the traditional form.
 The city’s recent and excellent design guidelines will get better and better.
Guidelines cannot assure good architecture (as any tour of the city will
quickly show). But they can assure good urban design. The trick is to

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never be complacent: keep learning from past mistakes. {underlining

added for emphasis}
 Historic districts, design overlays and discretionary design review (in the
redevelopment areas) will blanket the city - assuring the type of design
input that residents clamor for.

Goals & Objectives

#5. Improve the appearance of Hoboken’s streets.

Land Use {Element}, Part I:

General Concepts:
 #1. Promote and enhance Hoboken’s historic character and design image….the
overall objective should be for the City to do all it can to ensure Hoboken
reinforces what separates it from suburban communities, or even from
other urban areas that no longer have these traits.

Economic Development Plan Element

This Element includes the following relevant Recommendations:

Retail Business Districts;

 #8. Limit the size and placement of temporary signs. The appearance
of even the most attractive commercial areas can quickly be ruined
through the proliferation of non-permanent signs, such as within
windows or storefronts. The regulations for such signs should be
strengthened, as should City enforcement of these restrictions.

City of Hoboken 2010 Master Plan Re-Examination Report

Given the importance of the master plan, N.J.S. 40:55D-89 requires its periodic
reexamination. The time frame for the periodic reexamination was changed from
six years to 10 years from the previous reexamination. The report must state the
following:

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 The major problems and objectives relating to land development in the

municipality at the time of the adoption of the last reexamination report.

 The extent to which such problems and objectives have been reduced or
have increased subsequent to such date.
 The extent to which there have been significant changes in the
assumptions, policies, and objectives forming the basis for the master plan
or development regulations as last revised, with particular regard to the
density and distribution of population and land uses, housing conditions,
circulation, conservation of natural resources, energy conservation,
collection, disposition, and recycling of designated

The 2010 Re-Examination Plan does not recommend changes to the above
referenced sections of the 2004 Plan. The policies and recommendations within
the applicable Elements of the City of Hoboken 2010 Master Plan Reexamination
Report that relate to, or are relevant to, the proposed Ordinance Amendment are
presented as follows:

Development Regulations: Zoning And Redevelopment:

 Utilize the Zoning Board of Adjustment’s Annual Report of variances in

preparing zoning amendments; create a priority zoning amendment list
based on the “D” variance requests for issues arising from court cases or
those which are generally deemed acceptable (e.g. commercial use of
cellar for restaurant kitchens, mixed-use in all zones)

Review of the 2015 & 2016 Hoboken ZBA Annual Reports

Based upon our review of both Annual Reports, none of the recommendations
for consideration by the City Council refer to Feather Flags.

Conclusion

Based upon our analysis of the proposed Ordinance Amendment, the 2004
Master Plan & 2010 Master Plan Re-Examination Report, and the 2015 & 2016
Hoboken ZBA Annual Reports, we offer the following conclusions &
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recommendations:
1. We did identify any provisions in the proposed development regulation,
revision or amendment, which are inconsistent with the master plan.
2. In our professional opinion, the proposed Amendment does not advance
the recommendations of the 2004 Plan & 2010 Re-Examination Report
referenced in the body of this memo;
a. Indeed it specifically contradicts Recommendation # 8 of the Retail
Business District section of the 2004 Master Plan.
b. In our opinion, the amendment is also inconsistent with several of
the general goals, objectives, and recommendations regarding
Hoboken’s image and aesthetics in the 2004 Plan and 2010 Re-
Examination Report:
1. Improve the appearance of Hoboken’s streets.
2. require high-quality design that will build the historic
districts of the future.
3. the overall objective should be for the City to do all it
can to ensure Hoboken reinforces what separates it
from suburban communities, or even from other
urban areas that no longer have these traits.
4. COMMENT: In addition to the specific language in
the Plan about the limitation of Temporary Signs, there
exist a consistent theme about encouraging better
signage - for historic areas and transit areas.
c. Similarly, it is our opinion that the proposed Amendment is also
inconsistent with the following guidance offered in the 2010 Re-
Examination Report:
1. utilize the Zoning Board of Adjustment’s Annual
Report of variances in preparing zoning amendments;
create a priority zoning amendment list based on the
“D” variance requests for issues arising from court
cases or those which are generally deemed acceptable
(e.g. commercial use of cellar for restaurant kitchens,
mixed-use in all zones)
2. We found no recommendations relevant to the
proposed Ordinance Amendment in either the 2015 or
2016 Annual Reports.

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3. COMMENT: Accordingly, the proposed Amendment

does not properly arise from a priority zoning
amendment list generated by the ZBA’s Annual
Reports.
3. Finally, we offer the following practical concerns:
a. Given the Hoboken Planning Board’s engagement in a Master Plan
Re-examination or Update, we contend that it would be more
appropriate for the Planning Board to comprehensively consider
signage in Hoboken as part of the Re-Examination Report then
Amendments to the Code that are not contemplated in the Plan.
b. We recommend that the Board carefully consider the ramifications
of the nomenclature in the proposed Amendment. Specifically, the
reference to a tax classification instead of a land use classification
could result in incompatible land uses; i.e., the current language in
the Code limits the use of Feather Flags to a zone where
commercial and retail are permitted uses. The proposed
nomenclature could result in the placement of Feather Flags in zones
where commercial and retail uses are not permitted uses.
i. As referenced above, “…these uses should be located in
areas according to the activities that are conducted on their
premises rather than according to their nonprofit status.”
c. The planning literature provides similar cautions pertaining to
temporary signs. According to The Signage Sourcebook, “Local
governments often enact special restrictions and prohibitions on
such signs {i.e., incidental and/or temporary signs}, generally
based on the argument that the haphazard use of the signs is
detrimental to several legitimate governmental interests,
including aesthetics and traffic and pedestrian safety…the present
judicial trend is to permit restrictions if (1) they are reasonable on
the grounds of safety and aesthetic objectives, and (2) they do not
overly sensor the free flow of marketplace information….”

Respectfully submitted,

George Wheatle Williams, PP/AICP

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