ROBBINSVILLE: Residents protest release of developer’s performance bond

By Joanne Degnan, Staff Writer
   ROBBINSVILLE — The Township Council has voted to comply with a court order and return a $414,259 performance guarantee to the developer of the Washington Estates neighborhood in a move that infuriated residents of the community who wanted the township to appeal the judge’s decision.
   Township Attorney Mark Roselli warned council members on May 26 they faced contempt of court charges, fines and jail time if they refused to comply with Superior Court Judge Linda Feinberg’s directive to release $41,426 in cash and the $372,833 performance bond posted by CJS Investments of Farmingdale. The judge ordered the funds returned because she said the town made a procedural mistake.
   Judge Feinberg also said Robbinsville must pay CJS Investments’ legal and court costs, which are estimated at $10,665 according to bills submitted to the court by the plaintiff’s attorney, Peter Klouser, of the Millstone law firm of Heilbrunn, Pape & Goldstein. In addition, the court denied the Washington Estates Homeowners Association’s motion to intervene as an interested third party in dispute over the developer’s performance guarantee.
   Joanne Fillweber, the president of the HOA, and several of her Olivia Road neighbors upbraided the township attorney and council at last week’s meeting after it voted 5-0 to release the money to CJS Investments.
   ”Our attorney says all you have to do is vote no and appeal the (court’s) decision,” Ms. Fillweber said to Mr. Roselli.
   ”Your attorney, who I have contact with more than I care to, frankly … that’s his opinion,” Mr. Roselli said. “My opinion is different than his.”
   Prior to the vote, Ms. Fillweber distributed photographs to the council members that showed ruts filled with standing water along the sides of Olivia Road. The homeowners association says the problem is caused by the developer’s failure to construct a 5-foot “stabilized shoulder” on the sides of the narrow road as was required by a 2006 settlement agreement. Ms. Fillweber also said the detention basin in the community of 25 homes is not functioning properly.
   CJS Investments originally requested the release of its performance guarantee last September, which triggered a required inspection by the township engineer, who recommended releasing the money under the condition that CJS post a two-year $112,359 maintenance guarantee. When a resolution authorizing the release of the performance guarantee came before the council on Nov. 11, the Olivia Road residents turned out in force to protest and no action was taken.
   The resolution was listed next on the agenda for the council’s Dec. 9 meeting and once again the Olivia Road residents were there to complain. After a lengthy discussion, Township Council President Sheree McGowan asked her colleagues for a motion to move the resolution, but the rest of the council sat in silence. No further action was taken on the matter.
   In her May 13 oral decision, Judge Feinberg ruled in favor of CJS, saying the township had committed a procedural error because it did not actually vote to deny the release of the performance bond. Under the law, the governing body has 45 days to vote on the matter once its engineer makes a final recommendation.
   The township contended in court that what transpired at the Dec. 9 Township Council meeting was a de facto vote against releasing the bond money because the council clearly demonstrated its intent was to withhold the funds.
   ”It had the same effect,” Mr. Roselli said to the council at its May 26 meeting. “By not voting, you in effect voted not to release it.”
   The judge’s ruling pertained only to the procedural issue surrounding the Dec. 9 meeting, not the underlying merits of the case, so the Washington Estates Homeowners Association preserves its right to sue over the improvements that it contends the developer should be required to make.
   Mr. Roselli told Ms. Fillweber that typically in cases like this the homeowners themselves have more legal leverage than municipalities do.
   Mr. Roselli said his case was hamstrung by the fact the township engineer had recommended the release of the performance guarantee.
   ”There were inspections done by the township employees,” Mr. Roselli said. “It’s not a situation where we say, ‘you know developer, we inspected and said it was OK and now we’re going to come back and say it’s not OK.’”
   For that reason, he said he felt the township had no basis for an appeal. He also pointed out that even if the Township Council should ignore his advice and appeal the judge’s decision, it still had to release CJS Investments’ performance guarantee because the court did not issue a “stay,” a ruling maintaining the status quo (withholding the performance bond) while the case is being litigated.
   Ms. Fillweber told the council that Washington Estates residents felt “stranded” by its decision to return the performance guarantee.
   ”I would have hoped you would have been on the side of the homeowners,” Ms. Fillweber said. “This developer should be held accountable. We’ll become your worst nightmare … because we’re going to keep coming back to you and I hope in the end the township doesn’t end up paying for this.”
   A call to CJS Investments’ attorney, Peter Klouser, was not returned Tuesday before The Messenger-Press’ deadline. Mr. Roselli also could not be reached for further comment.