BY JOYCE BLAY
Staff Writer
JACKSON — A law requiring developers who build housing to provide fields for recreation use may have hit a snag. Since June 2004, Township Attorney Kevin Starkey has been negotiating a settlement to the legal challenge of a 2003 ordinance that requires residential developers to set aside land for passive and active recreation or to contribute to a fund established for that purpose.
According to Starkey, the attempt to settle is less risky than defending the township’s ordinance in court.
“There’s always risk in litigation [for] both sides,” he said. “The reason we didn’t proceed with a trial is because the judge instructed us to try to resolve this through negotiated compromise.”
The New Jersey Shore Builders Assoc-iation (NJSBA), Lakewood, a nonprofit organization serving members in Mon-mouth and Ocean counties, filed the suit in June 2003. Their attorney, Paul Schneider, alleged that in adopting the ordinance on May 12, 2003, the Township Committee exceeded the township’s authority under the Municipal Land Use Law.
The papers assert that the law was arbitrary, capricious and unreasonable, while not serving a legitimate planning or zoning purpose. Schneider also claimed the ordinance did not provide clear standards for compliance.
Last week, Schneider told the Tri-Town News that although a trial date had been scheduled for June 2004, the township instead requested a settlement. Seven months later he and Starkey have still not come to an agreement.
Schneider said they are scheduled to meet with state Superior Court Judge Eugene Serpentelli in his Toms River chambers on Jan. 19 to discuss the status of the negotiations.
Starkey denied that the seven-month delay was a legal tactic.
“We’re not stalling for time,” said Starkey. “The reason we didn’t proceed with a trial is because the judge instructed us to try to resolve this through negotiated compromise. I’ve had one meeting with Paul Schneider. Whether we settle or not, I don’t see the need for more meetings with him.”
Starkey said he last talked with Schneider in November.
He and township planner Rick Ragan proposed that Schneider rewrite the Jackson ordinance according to one passed in West Windsor, Mercer County, according to the builders association attorney.
Starkey stressed that the attempt to negotiate a settlement did not mean the township was conceding that it could not prevail at trial.
“The settlement discussions don’t indicate you have a losing position,” he said. “We’re ready to go to trial, but we’re prepared to settle if (going to trial) means a possible loss.”
Starkey said the NJSBA risked having the Jackson ordinance upheld by a judge’s decision. For both sides, settlement was a less risky alternative, he emphasized.