By Victoria Hurley-Schubert, Staff Writer
An amended lawsuit seeking to stop Princeton University’s proposed movement of the Dinky train has been filed as has an additional suit challenging zoning changes made as part of the project.
The first case, filed in October 2011, was dismissed because the suit was never served to university officials. A dismissal automatically takes place within a certain amount of time, 90 days in this case, when a case is inactive, which is what happened with the original suit.
”We didn’t do that because we wanted to see what the zoning changes would be before we pursued this,” said Bruce Afran, attorney for the plaintiffs. “The original 90 days for the first complaint expired, but we amended it and started the clock running again. Now that the zoning has passed and they (the university) are going to move forward as we saw today, we are going to move forward and serve the complaints. We were hoping they would be reasonable and not (move forward).”
The amendment was filed Jan. 19 and the case is pending and is active in the Mercer County Chancery Division of the Superior Court.
The amended complaint, dated Jan. 19, has not been served, said Richard Goldman, a municipal land use lawyer with Drinker Biddle & Reath, Princeton University’s attorney. Mr. Goldman’s firm had offered to accept service of the complaint on behalf of the university and they did notify Mr. Afran of that.
Court documents had shown the case closed and dismissed, which caused some confusion at a hearing Thursday morning at the Department of Environmental Protection. The date of disposal on the court records, obtained by the Packet, is Jan. 20, 2012.
The court docket now shows the case has been amended and reinstated, said Mr. Goldman. “That’s appeared since we last looked a couple of days ago.”
The amended suit alleges that the 1984 contract of sale between NJ Transit and Princeton University does not permit movement of the train, except along the existing platform, said Mr. Afran.
”They can move the train southward coincident with the minimum reservation of platform space. The minimum reservation of platform space is defined as 170 feet. In 1987, they moved the terminus of the train southward, which is 170 feet from the end of the platform.”
The end of the station was moved to where the south building is, which fulfills the 170 feet movement allowance.
”They moved it as they were allowed to do,” he said. “They moved the tracks down a bit so students could walk across the sidewalk.”
The suit argues that the university cannot move the tracks anywhere in the property in the 1984 purchase; it must stay where it is since the university has already moved it with the space allocated.
”They did the move they contracted for, it’s done,” said Mr. Afran. “Game over.”
The contract also does not say the university can abandon the current station and build a new station somewhere else on its property, he said.
”It says they must keep the service in the south building,” said Mr. Afran.
The original case was filed in Mercer County Courts on Oct. 4, 2011, by the Save the Dinky group, including Anne Waldron Neumann, Walter Neumann, Rodney Fisk and Peter Marks, challenging the right of NJT and Princeton University to move the terminus or ending point of the Dinky.
”The deadline to file wasn’t kept because the case was filed so early,” said Ms. Neumann. “From what I gather it is a technical dismissal. It was filed early before the zoning was passed, just to have it in place.”
Princeton plans to move the terminus 460 feet south to accommodate its proposed arts and transit neighborhood on University Place at Alexander Street.
The suit sought a judge’s order that would permanently prevent Princeton University from moving the terminus. It also seeks to recover the cost of legal fees and the cost of the lawsuit from the university.
Second suit filed
Another group of plaintiffs have filed a suit challenging the E5 zoning that was put into place last year to allow for the construction of the $300 million arts and transit project.
The suit was filed Jan. 10 in the Mercer County Law Division.
”It simply says the zoning is illegal because it gives one landowner an advantage other landowners don’t have,” said Mr. Afran. “It’s specially designed for the benefit of one landowner.”
The group thinks the university should have gone to the zoning board for a variance.
”It can’t get a zoning district for one landowner, it’s called spot zoning and its illegal,” said Mr. Afran. “What you have to do if you are a land owner and don’t like the existing zoning is go to the zoning board and ask for a variance.”
The zoning change should have been done with a hearing before the zoning board for a variance, not a zoning ordinance change at the Borough Council, said Mr. Afran. At the zoning board, it is similar to a trial situation where members of the public can present a case against an applicant and offer testimony.
The suit alleges says the Borough Council caved into direct threats from Princeton University, which Mr. Afran says include threats of withholding of their voluntary payment in lieu of taxes.
This year, the university’s payment in lieu of taxes was $1.7 million to the borough, a $500,000 increase from previous years, after the zoning issue was settled.
”Effectively the university was buying the zoning,” he said “Those payments were tied into the zoning. The suit alleges this was an illegal sale of zoning. You cannot have contract zoning.”
The suit also alleges there are no true public benefits. It is all for the private benefit of the university and its faculty, staff and students.
”With no public benefit you can’t give zoning to a single landowner,” said Mr. Afran. “The university has to obey the law like everybody else in town and they cannot demand special privileges.”
A variance hearing would have weighed the public benefits to the project.
Anne and Walter Neuman of Princeton Borough and Marco Gottardis of Princeton Township are the plaintiffs in the second suit. The suit is funded by the Eleanor Lewis Public Advocacy Fund.

