A state judge on Thursday dealt a setback to a group of residents who sued to block AvalonBay from developing the former Princeton Hospital on Witherspoon Street.
By Philip Sean Curran, Staff Writer
A state judge on Thursday dealt a setback to a group of residents who sued to block AvalonBay from developing the former Princeton Hospital on Witherspoon Street.
Superior Court Judge Mary C. Jacobson, sitting in Trenton, dismissed one of the counts in a five-count lawsuit that the “Association for Planning at Hospital Site LLC” filed in September.
In particular, she found that the LLC — made up of 10 Princeton residents who live within a few blocks of the former hospital — was too late in challenging the legality of a 2006 Princeton Borough zoning ordinance for the site.
The residents had argued that the ordinance amounted to illegal spot zoning meant to favor Princeton HealthCare System, the owner of the parcel that has a contract to sell to AvalonBay. But the judge found that the time limit to challenge the ordinance was in 2006, not seven years later.
That was the contention Princeton Planning Board attorney Gerald J. Muller made during oral arguments. He said the plaintiffs had a 45-day window in 2006 within which to do so. Instead, he told the judge, they “sat on their rights” and sued only after they got a result they did not want.
The plaintiffs have claimed they were duped into thinking the buildings on the property would not be razed, although that was allowed in the ordinance and the master plan, he said. There had been talk several years ago of reusing the hospital building.
Mr. Muller’s arguments were buttressed by AvalonBay attorney Robert Kasuba, who spoke after him. He said it was clear in 2012 what AvalonBay’s development proposal was going to be, yet no lawsuit ensued.
The judge sided with them on the statute of limitations point. She said the residents took a “wait and see attitude.”
In July, the Princeton Planning Board voted for AvalonBay’s proposal to develop the property into a 280-unit residential development. It was AvalonBay’s second try to get Planning Board approval, having failed the first time in December 2012.
Mark Roselli, the attorney for the LLC, told the judge that after the first application was rejected, there was no need for the residents to sue at that time.
AvalonBay wound up suing the Planning Board earlier this year. The residents contend that since that lawsuit has not been dismissed, the Planning Board approval this past summer is void.
The Planning Board voted, 8-1, to approve AvalonBay’s second proposal to locate the 280 units in five buildings. In September, the LLC sued AvalonBay, the Planning Board, Mayor Liz Lempert and the Princeton Council and the municipality seeking to have that approval thrown out.
But in a second ruling, the judge found that the LLC, as an entity, did not have legal standing in the case. Normally, she said, that would have led to the lawsuit being thrown out. There was a motion to dismiss the case on that basis. Mr. Roselli explained that residents had concerns about putting their names on the suit.
The judge, however gave residents until Dec.20 to amend the lawsuit to put at least one person’s name on it as the plaintiff. That is expected to occur, as the case moves to its next phase.
Lawyers are due back in front of the judge Feb.13 for oral arguments on the rest of the lawsuit. In his remarks to the judge, Mr. Roselli touched on the impact the AvalonBay project will have, including traffic and the actual demolition of the site.
The judge’s courtroom was mostly empty for oral arguments that started a little after 10 a.m. Princeton planing director Lee O. Solow sat by himself on one side of the courtroom. Areta Pawlynksy, Paul Driscoll and John Armonia, three of the 10 members of the LLC, sat together on the other side.
Ms. Pawlynsky directed all comments afterward to Mr. Roselli.
”We are still moving forward with the balance of our entitlements,” said AvalonBay Vice President Jon Vogel in an email Thursday.
”We share with many members of the community an eagerness to move forward with the redevelopment of the site in a manner consistent with Princeton’s ordinances.
”We will continue to work cooperatively and expeditiously with the attorneys representing Princeton to address this litigation so that the boarded-up hospital building can finally be removed and replaced with a significantly improved development.”