Anti-garage lawsuit remains active

Borough to continue with project.

By: Jennifer Potash
   Although a Mercer County Superior Court judge has refused to dismiss a lawsuit challenging the downtown garage, Princeton Borough will proceed with the project, officials say.
   "That’s our plan," Mayor Marvin Reed declared Monday.
   Superior Court Judge Linda Feinberg rejected the borough’s motion Friday to dismiss the lawsuit filed by Concerned Citizens of Princeton, a group of residents and merchants opposed to the garage project. But that decision is not the court’s final say on whether the Princeton Borough Council properly declared the two municipal parking lots near Spring Street an area in need of redevelopment. The court will hold a hearing on that issue March 21.
   Environmental remediation work on the site by Public Service Electric & Gas Co. is nearly complete and the utility will turn the Spring Street site over to the borough March 1, said Borough Administrator Robert Bruschi.
   Mayor Reed said that three-week period is critical for the borough to keep the December completion date for the garage. Any delay in construction also would make it more costly to resume at a later date, he said.
   Although Judge Feinberg did not rule on the merits of the lawsuit, she did reject the borough’s argument that the Concerned Citizens’ lawsuit should have been filed 45 days after the borough designated the two municipal parking lots off Spring Street as an area in need of redevelopment on Feb. 26, 2002.
   R. William Potter and Robert Zagoria, attorneys for Concerned Citizens, argued the borough did not inform residents until the fall of 2003 how the designation would affect the financing and design of the project.
   That designation, which is key to the project, allows the borough to partner with a private developer without following the state’s lowest-responsible-bidder requirements for public projects.
   Also, the area-in-need-of-redevelopment designation permits the borough to impose special assessments and other fees on the 2.13-acre site and exempt the project from real estate taxes for a minimum of five years under the agreement with developer Nassau HKT Associates.
   Mayor Reed and other borough officials have said the agreement was the best way to ensure that the project would require no tax support and at the same time replenish the roughly $550,000 in annual parking revenue generated by the two surface lots. The borough’s agreement with Nassau HKT contains a payment-in-lieu-of-taxes arrangement.
   The judge struck down Concerned Citizens’ petition for a referendum on the $13.5-million bond ordinance adopted by the Borough Council Dec. 17.
   The borough acted properly in adopting the ordinance and other resolutions, which are not subject to referendum under the state’s Land Use Housing and Redevelopment Law, the judge concluded.
   Judge Feinberg said at Friday’s hearing she initially sided with the borough, noting the tight schedule and nearly $1 million spent on the project. But she was swayed by reading more of the case law and by the considerable public interest — over 800 signatures on the petition and certification from 20 borough residents and merchants — in the project.
   "This is a project of great size, great significance and great money and where a significant part or large number of citizens have voiced concerns," the judge said.
   The borough, in partnership with Nassau HKT, plans to build a 500-car parking garage and public plaza on the former Park & Shop lot. Also in the project are two five-story mixed-use buildings, to be owned by the developer, with a total of 77 apartments as well as a restaurant and a food market.
   The judge cautioned she has not reviewed the merits of the case.
   "I don’t know where all this will lead," she said.
   The ruling had both sides claiming victory.
   Borough Attorney Michael J. Herbert said he was pleased the judge upheld the bond ordinance and the other financial agreements, including the payment-in-lieu-of-taxes provision, and quashed the proposed referendum.
   "I’m confident the borough will prevail," he said.
   Mr. Potter said he was encouraged by the judge’s decision and her recognition of the substantial public interest in the project.
   Should the Concerned Citizens lose at the next hearing, Mr. Potter said the group would likely appeal.
   Jim Firestone, president of Concerned Citizens, who was among more than a dozen residents who attended Friday’s hearing, also was elated that the case would be moving forward.
   "It shows the people that they do get their day in court," he said.