The township will appeal a recent ruling that paves the way for Toll Brothers to begin final site plan work on Estates at Princeton Junction.
By: David M. Campbell
WEST WINDSOR — The township will appeal the recent ruling issued by a Superior Court judge that opens the way for Toll Brothers to begin final site plan work on the long-delayed Estates at Princeton Junction.
In a decision issued May 2, Mercer County Superior Court Judge Linda Feinberg settled virtually all unresolved issues in favor of Toll Brothers following a hearing to settle a dispute over the township’s conditional site plan approval of the 1,165-unit development proposed by the Pennsylvania-based developer for 293 acres off Bear Brook Road.
Judge Feinberg resolved or threw out nearly all of 40 unresolved conditions in the disputed preliminary site plan, which was approved by the Planning Board after two months of hearings in May 1999. That approval was contingent upon 172 conditions set by the Planning Board.
Township Attorney Michael J. Herbert said Thursday that Mayor Carole A. Carson and the Township Council had instructed their lawyers to appeal the ruling.
Henry Hill, Toll Brothers’ attorney, said a decision to appeal Judge Feinberg’s opinion “is consistent with the township’s resolve to deter and delay this project.”
Mr. Hill called the judge’s decision “well-reasoned.”
“She certainly put more thought into the decision than the township put into the conditions,” he said. “You can appeal anything, but the reasoning of the decision stands by itself.”
In 1996, Toll Brothers won a lawsuit against West Windsor in which it claimed the township didn’t meet state affordable housing requirements, and was awarded a “builder’s remedy” by Superior Court Judge Philip Carchman. That ruling and several that followed gave Toll Brothers court approval to build on the site.
In addition, the “builder’s remedy” limited the Planning Board’s authority to health and safety issues in its review of Toll’s site plan application.
A number of the 40 unresolved conditions were stricken by Judge Feinberg on the ground that the Planning Board overstepped its court-restricted authority.
In interviews conducted last week, lawyers for Toll Brothers indicated they considered Judge Feinberg’s ruling a significant victory for the company, and said it paved the way for final site plan approval within the next six weeks, and after that, groundbreaking on the site.
But Councilman Charles Morgan said he does not consider the Feinberg ruling a defeat. “It is notable that West Windsor won on the vast majority of our 172 conditions,” he said. “There were only about 16 that were disputed and the court ruled against us.”
Mr. Morgan called Judge Feinberg’s ruling “masterful” and “well-reasoned and full of facts from the record,” and said it will be difficult to overturn.
But he said the health and safety issues may yet be the source of a successful appeal of Judge Feinberg’s ruling.
Mr. Morgan said the outstanding 16 conditions “were pretty big ones,” containing the most significant health and safety issues.
“Which is why we’ll be appealing her order and have a fighting chance of getting close scrutiny on appeal,” he said. “The scary thing is that the judge is accepting the ‘opinions’ of so-called experts about what will — or will not — happen in the future.
“It is scary because no one knows whether those ‘bad’ things will or will not happen,” he said.
Mr. Morgan said the Feinberg ruling shifted risk to the township, in relation to such issues as traffic circulation, access for emergency vehicles and stormwater runoff.
“The court has overruled our concerns, but we remain at risk that the Toll experts were wrong and that our concerns were appropriate,” he said. “If the ‘bad’ things actually happen, we’re stuck with the problem, and Toll and their experts will be long gone.”
Mr. Morgan said he is also confident the township will win its previously filed appeal of the 1996 ruling granting Toll Brothers the “builder’s remedy.”
“I don’t think Carchman’s decision was sound,” he said. “Our affordable-housing program clearly was working.”
Council President Rae Roeder said the Feinberg ruling was not a defeat and, like Mr. Morgan, said the township will likely win its appeal of the Carchman ruling.
“The township of West Windsor has complied with its Council of Affordable Housing obligations,” she said. “We have surpassed our quota, so the issue is that we have done that and West Windsor is not recalcitrant as described (by Toll Brothers).”
Ms. Roeder said, “I think the good name of West Windsor has been dragged through the mud.
“I think the town needs to be commended for the work it has done and the affordable housing it has built,” she said.
Councilwoman Jacqueline Alberts, who was on the Planning Board at the time preliminary site plan approval was granted, was one of two members who voted against the approval.
At the time, Ms. Alberts said, “In my six years on the Planning Board, I have seen approvals with hundreds of conditions far more expensive and detailed than Toll, conditions that developers have accepted and proceeded to build on. I have also seen developer after developer take a ‘yes’ vote with conditions and then go on to destroy the conditions by either negotiation, mediation or litigation.”
Ms. Alberts said this week the Feinberg ruling, “sad to say,” was the outcome she expected.
“This was exactly the kind of thing that concerned me enough to vote no,” she said. “I’ve seen too many applications changed after the approval.”
In light of the Feinberg ruling, Ms Albert said, the township now has “to see what the impacts of this project are in terms of health and safety, because that’s still our duty, to protect the health and safety of our residents.”
And like her colleagues, Ms. Alberts said she is hopeful of the township’s chances on appeal of Judge Carchman’s affordable-housing ruling.
“Our assertion in 1993 was that we’ve always been in compliance,” she said. “West Windsor has maintained throughout this entire case that we are in compliance, that Toll is not entitled to a builder’s remedy.”
The appellate court is expected to rule on the township’s appeal of Judge Carchman’s ruling this summer, Ms. Alberts said.