PACKET EDITORIAL, Aug. 22
By:
There comes a time in any legal proceeding of long standing (and considerable expense) for one side or the other to recognize the futility of its case, accept the inevitability of defeat and start looking for whatever kind of out-of-court settlement it can get.
That time has now arrived in the matter of Toll Brothers v. Township of West Windsor. After yet another crushing blow – this one delivered by the Appellate Division of state Superior Court – the time has plainly come for West Windsor to throw in the towel.
We know how hard that will be for West Windsor officials. They’ve been fighting Toll Brothers for years. Nobody runs for office in West Windsor without bad-mouthing the Estates at Princeton Junction – the Pennsylvania-based developer’s plan to build 1,165 units, including 175 affordable-housing units, on 293 acres off Bear Brook Road. Fighting Toll Brothers has become more than a political imperative in West Windsor; it’s an obsession.
But the longer this fight goes on, the more ground the township seems to lose. Last week’s Appellate Division ruling didn’t just open the door to the development of the much-reviled Estates at Princeton Junction; it also paved the way for two nearby properties, which West Windsor had rezoned from residential to commercial, to become home to as many as 1,300 additional units of multi-family housing.
This was a particular slap in the face – and a surprising one – to West Windsor officials, who may have anticipated an unfavorable ruling on the Estates at Princeton Junction case but clearly did not expect the rezoning of the other two sites to be overturned.
So, the sorry toll of the Toll Brothers litigation continues to mount. Thus far, it has succeeded in increasing the amount of unwanted housing West Windsor may be forced to endure from 1,165 units to more than 2,400 units. To make matters even worse for the township, last week’s decision by the three-judge appellate court was unanimous – making it highly unlikely that the state Supreme Court will even agree to hear the case on appeal, much less overturn the lower court ruling.
Mayor Carole Carson is nevertheless on record in favor of taking the case to the state’s highest court. "We’ve been valiantly fighting this all along," she said. "I think West Windsor has met its affordable-housing obligations. Unfortunately, the courts haven’t agreed with us."
Unfortunately for West Windsor, the opinion of the courts is the only one that matters. And every opinion rendered to date has worsened the township’s position. That’s why the time has come to look for a way out.
Of course, it takes two sides to reach a settlement – and that puts some of the burden on Toll Brothers to come to the negotiating table. The developer has won every battle so far, and may be smugly inspired by its string of successes to carry out a "scorched-earth" strategy all the way to the end. That would be unfortunate and unwise – not just for West Windsor and neighboring communities but, in our judgment, for Toll Brothers as well.
Nobody can deny that Toll Brothers deserves the right to build low- and moderate-income housing in West Windsor. And nobody can dispute the fact that the township could have moved faster, and done more, to fulfill its obligation to provide low- and moderate-income housing before Toll Brothers had to go to court to seek its infamous builder’s remedy. But the sad fact is that nobody stands to benefit from the kind of intense development these court rulings would permit – development that would severely strain municipal services, clog streets and highways and overburden schools.
When it comes to housing, it is axiomatic that more isn’t necessarily better. It may not even be profitable. A smart developer knows this. And Toll Brothers, if nothing else, is a smart developer – smart enough, one hopes, to let good business sense prevail at this point over the quest for a pyrrhic legal triumph.