As expected, West Windsor has sent the attorneys representing InterCap Holdings a letter demanding that it withdraw its lawsuit, claiming that the lawsuit is “frivolous” and stating that it will apply for the dismissal of the complaint.
The lawsuit was filed in December, a week after the West Windsor Township Council voted to send its draft redevelopment plan for the 350-acre Princeton Junction train station area to the Planning Board (see story in Letters). InterCap CEO Steve Goldin had stated that the number of housing units — 359, a number that officials say serves as a base number and could be negotiated — would not make the project feasible.
Goldin had originally brought a proposal to council for 935 units on his property — 25 acres on Washington Road, a key property in the redevelopment area — to come in two phases. In the meantime, he also submitted a plan to the Planning Board for a multi-use development on his property that requests rezoning for 1,”440 condominiums and 88,”000 square feet of office and retail space, along with a letter implying possible litigation.
The lawsuit alleges that the township has violated Mount Laurel affordable housing regulations and that it discriminates against families with school-aged children.
However, a letter sent to InterCap attorneys, dated January 15, from Planning Board Attorney Gerald Muller and Township Attorney Michael Herbert states that the “complaint has been filed in bad faith and is frivolous and should be withdrawn by your office within 28 days,” pursuant to law. “If it is not withdrawn in that period of time, and our clients prevail in this litigation, we will to seek sanctions against your client in the form of all litigation expenses in defending against a frivolous lawsuit.”
The suit charges that the township’s zoning designation for the property is unconstitutional “as contrary to general welfare” of not just the municipal residents, but regional and state residents as well. Citing state smart growth and affordable housing policies, the lawsuit alleges the township is not fulfilling state objectives of providing transit-oriented development to residents in need. The counts state that the township is in violation of the Mount Laurel Doctrine for failure to address affordable housing needs of cost-burdened households; that it failed to address unmet need as well as the need for workforce housing.
The lawsuit also alleges that one of the main reasons the township rejected InterCap’s proposals for the development of its 25 acres was “to prohibit the influx of school age children within the township,” which InterCap alleges is a violation of state and federal law against discrimination. The lawsuit also alleges that the zoning designation for the property is arbitrary, capricious, and unreasonable.
The lawsuit states that InterCap “has attempted, over the course of the last two years, to present zoning and redevelopment concepts for the property that would allow for a significant mixed-use, transit-oriented development with a substantial amount of residential development affordable to a wide variety of income classes.”
InterCap also points out in the lawsuit that the concern relative to the potential for school age children to come from the residential development on the property was so great that at one point, InterCap “was presented with a development counter-proposal by the township that would allow for increasing residential densities for the property over a period of time, so long as plaintiff (InterCap) was able to demonstrate that the level of school-age children remained below a certain threshold.”
Muller and Herbert, however, point out that West Windsor filed an affordable housing plan dealing with the township’s obligations under the new third-round regulations created by the state Council on Affordable Housing prior to the December 31 deadline. And because it has done so, “a trial court is without jurisdiction to entertain this complaint,” the attorneys state in the letter, adding that any challenges would have to be filed through COAH.
“Second, the claims made are not ripe for adjudication, as they all related to the redevelopment planning process that has not been completed by the township,” the letter further states. “A draft redevelopment plan that is now under consideration by the Planning Board upon referral from Township Council addresses the very issue that you purport to raise, namely, the provision of low- and moderate-income housing, as well as market housing, on your client’s property.”
The letter also argues that none of the seven counts in the lawsuit state a claim. With regard to the first Mt. Laurel count, InterCap officials allege that a municipality is required to provide adequate housing for all levels of income, and not just low- and moderate-income families. “That allegation has no basis in the law,” the letter states. “In fact, the municipal obligation under the Fair Housing Act is limited to providing adequate housing for low- and moderate-income families and nothing more.”
Also, the fourth count contends that the township failed to address “workforce housing,” as “some type of enforceable Mt. Laurel cause of action. There is no such cause,” the letter states.
InterCap is also alleging that the township violated state law as well as the Federal Fair Housing Act that prohibits discrimination based on familial status. The lawsuit states that “the township maintenance of the current zoning designation for the property and the prohibition of a predominantly residential development that would allow for a walkable, transit-oriented development are a collective abuse of the township’s delegated authorities under the New Jersey Constitution as such zoning controls are contrary to the general welfare of the people of the region and state.”
InterCap also alleges that the zoning as called for in the redevelopment plan is undermining housing opportunities created by developers for cost-burdened households.
However, Muller and Herbert state that the same allegations were made by Toll brothers against the township in 1998, but the allegations were rejected by the same court whose jurisdiction is invoked in the complaint. In that case, Toll Brother had contended that the township had violated the FFHA and LAD in adopting a downzoning ordinance, but in April of 1999, Judge Linda Feinberg rejected the claims. “The court held that in the absence of an attempt to prohibit housing for families, these claims could not be the basis of judicial relief,” the letter states.
The last count that alleges the zoning designation for InterCap’s property is “arbitrary, capricious, and unreasonable” does not contain any facts other than incorporating the earlier alleged violations of the Mount Laurel Doctrine, COAH rules, and alleged violations of the FFHA and LAD, and it fails to point out that InterCap acquired property which was zoned for retail, office, and manufacturing, and that the property has been developed as such, the letter states.
“West Windsor Township and its Planning Board intend to vigorously defend their position, and we will make an appropriate application for the dismissal of this complaint, which was clearly filed in bad faith by your client,” the letter states.
