By Philip Sean Curran, Staff Writer
A state judge on Tuesday issued a temporary restraining order preventing the Institute for Advanced Study from working on its faculty housing project until she decides on a lawsuit opponents of the project have filed.
The outcome after a roughly three-hour hearing in Mercer County Superior Court in Trenton was a short-term win for the Princeton Battlefield Society, which is suing to keep the 15 housing units from being built. The organization sought the injunction after witnesses last month reported seeing earth-moving equipment at the site, on Institute-owned land that the Society says is a critical piece of the 1777 Revolutionary War battlefield.
Battlefield Society Attorney Bruce I. Afran argued in court to have Judge Mary C. Jacobson issue the restraining order, a judicial act that she said from the bench is not issued lightly.
In his lengthy oral argument, Mr. Afran pointed to the “irreparable” harm that would come if the typography of the historic land were disturbed. He said that artifacts buried in the ground would be lost forever when the soil is removed and hauled away.
He rejected an Institute argument that it would restore the site if it lost the legal battle.
Institute attorney Christopher S. Tarr said his side has the permits to get going, and noted that faculty have waited a long time to get the housing built. At one point, he offered an olive branch, to have the Institute be allowed to do the grading work on the site but not start building the 15 housing units.
He said an archeologist would be on site to monitor digging to see if any artifacts are turned up.
For her part, the judge expressed concerns about allowing trees and the rest of the land to be disturbed amid the pending legal challenge. She cited how rare it is for a developer in a disputed project to want to start building, given how courts could later order any work to be torn down at the loss of the developer’s financial investment.
Mr. Tarr, however, noted that Princeton University had done just that in its arts and transit project despite pending court challenges.
The Institute had asked that if the judge were to issue the restraining order, that she also require the Society to post a $295,00 bond to cover any cost overruns caused by delaying construction. Mr. Afran argued against it, and Judge Jacobson agreed.
She is scheduled to hear the Society’s case in September, having two years ago upheld an earlier Planning Board approval that the Institute had received in 2012.
In remarks from the bench, she made comments suggesting she would side with the Institute again and said the Battlefield Society had a tough legal road “to hoe.” She said she did not see a strong or reasonable likelihood of the organization prevailing on the merits of its case.
“I’m not infallible,” said Judge Jacobson, who recently saw the state Supreme Court overturn her ruling in a case involving the Christie Administration and its contribution to the state employee pension system.
She is not expected to be the last word on the Battlefield Society lawsuit, regardless of how she rules. During oral arguments, Mr. Afran said the case probably would go all the way to the state Supreme Court.
The hearing ran for roughly three hours in a row without breaks. At times, Mr. Afran made pointed criticism of the judge’s earlier ruling on the lawsuit challenging the Planning Board approval from 2012. He told her that she had got that case wrong and was in “error.”
“I don’t want to hear that today,” she told him when he tried to go into that earlier case. She later told him he was “trying my patience.”
After the hearing, the Institute issued the following statement: “While we are disappointed with the ruling, we respect Judge Jacobson’s decision regarding the temporary injunction. We welcome her acceleration of the scheduled hearing for the Battlefield Society’s remaining appeal of the Princeton Planning Board’s approval of our project. We remain confident that the project will proceed as planned.”
