It was literally past the 11th hour when a debate over the lack of a dedicated bike lane jeopardized West Windsor’s settlement agreement with InterCap Holdings.
The Township Council, however, unanimously voted at 12:30 a.m. — five and a half hours after the meeting began on November 22 — to approve the settlement with the developer.
InterCap, led by CEO Steve Goldin, a township resident, had sued West Windsor over the redevelopment designation of the 350-acre area around the Princeton Junction train station, which included InterCap’s 25 acres off Washington Road.
Now that the first move toward a settlement has been made, Township Attorney Michael Herbert said the judge presiding over the case, Superior Court Judge Linda Feinberg, must hold a “fairness hearing” and then approve the settlement.
If Feinberg grants approval, a development application as outlined by the settlement would go to the West Windsor Planning Board for approval. If the board approves the application, Intercap will dismiss its lawsuit against the township. In addition the Township Council also must approve two ordinances to effectuate the settlement.
The settlement calls for a total of 800 housing units — to be phased in — on InterCap’s property, along with retail development and infrastructure and amenity contributions. The most notable is a promenade that would provide a public area for residents.
Of the 800 residential units, 40 — or 5 percent — will be moderate income units based on state requirements. Most of the units would be two bedrooms, while as many as 10 percent could be one-bedroom, and as many as 10 percent could be three-bedroom.
Herbert said the settlement provides a town center for downtown West Windsor, replaces structures that, for the most part, are underutilized, and in many cases, are an eyesore. It “gives us a real injection of retail at a time when it’s really needed.”
Statistics and studies show that only a “minuscule” number of school children will be generated by the project, said Herbert. “This is going to be a tax positive development.”
John Madden, township planner, said the settlement process was a positive for the township’s redevelopment efforts. “We’re moving redevelopment a little further to a realization.”
Tensions were high before the vote, as a majority of the standing-room only crowd in attendance was against the settlement. They argued they would rather lose in court and have an invalidated redevelopment plan over InterCap’s plan.
“What is the motive that we have to settle?” said resident Bob Akens. If the township lost in court, the only loss would be that the redevelopment plan would be voided, he said. “That wouldn’t be a disaster.”
He alleged that the township was folding to InterCap’s demands. He said that when he read a copy of the settlement, it seemed like “one guy up here was telling what it was going to be, and one guy down here was saying, ‘Yes, sir.’”
Central to the concept plan, presented by InterCap architect Jim Constantine, of the Looney Ricks Kiss firm in Princeton, was the circulation design for the 50,000-square foot promenade in the center of the site. The feature calls for a “shared space” design that focuses on pedestrians and bicyclists, with cars having to drive as slow as 15 miles per hour through the center of the site.
According to Herbert’s memo, the promenade will provide pedestrian, bicycling, and vehicle access and will function as a “low speed pedestrian-oriented public space through which motor vehicles travel and park.”
The promenade will be constructed, maintained, and owned by InterCap and will include passive areas and active public gathering space that can host a farmer’s market and other public events.
The promenade would be 750 by 160 feet in the center of the site, said Constantine. The buildings on the site would be limited to four stories — consistent with the township’s redevelopment plan, and there are provisions for Vaughn Drive to connect to the site.
“We hope it becomes the community living room for West Windsor,” he said. “It probably could become one of the largest public spaces in New Jersey.”
In fact, the promenade would be so big that it could contain the same amount of space as occupied by a variety of areas in downtown Princeton, including the kiosk space in Palmer Square, Mediterra Square, Tiger Park, the library plaza (Hinds Plaza), and Palmer Square itself, said Constantine.
The various areas would be broken up into a series of outdoor “rooms” linked together so that there would be a variety of grassy areas as well as paved areas for events like concerts.
Restaurant, cafes, and shopping would be located on the first floor of the buildings around the promenade and would include “mom and pop” shops. “This is not a location where national chains want to be,” he said. “They want to be out on Route 1.”
There would be four interior blocks of housing outside of the promenade on the four corners of the property that would be styled more as “interior courtyards” for people who do not want to live on the main street. In those sections, plans include one parking garage in each section to be integrated into the overall building design.
The parking garages would be for residents only, while there will be 270 spaces provided on the street for retail parking.
“It’s important that this promenade be designed to attract all West Windsor residents and not just the new residents who will be living there,” said Councilwoman Linda Geevers.
However, residents and the Township Council bemoaned the fact that the plan for the circulation in the promenade does not call for designated bike lanes. They said it is not safe to expect cars to share the road with pedestrians and bicyclists without such delineation.
“The whole street becomes a bike lane,” said Constantine, pointing out that the design is borrowed from examples in Europe.
The issue of safety for pedestrians and bicyclists, who some council members said might be put at danger if cars disregard the design and use the street as they normally would, was a red flag for council members Linda Geevers and Diane Ciccone.
“I’m very concerned we can’t shave off a few feet of width for safety,” Ciccone said, referring to designating a portion of the proposed roadway for a bike lane. “New Jersey drivers are not ready for this concept.”
Herbert and the township planning attorney Gerald Muller both reiterated that they tried numerous times during negotiations to ask InterCap to add a dedicated bike lane — to no avail.
InterCap’s attorney, Richard J. Hoff Jr., of the Bisgaier Hoff law firm of Gibbsboro, said that as much as West Windsor did not get some concessions it wanted, “there were lots of things that we would have liked to get but didn’t.”
“I’m not saying it’s going to go unaddressed; it’s not,” he said about the safety concerns, but added that the ordinances the township will adopt to put the concept plan into effect provide for safety measures.
“We cannot agree,” said Hoff. “The idea that a shared bike lane needs to be added, we cannot do it.” Shared space is fundamental to the design, he emphasized. “This is as much an amenity as it is a marketing” factor for InterCap.
Responded Ciccone: “I’m extremely disappointed in your client that he would choose marketability over safety.”
The residents at the meeting opposed to the settlement cited a variety of concerns, including the idea that the development would not be successful in West Windsor.
Resident John Church believes the project will generate extra traffic on Washington Road. “It could just turn out to be a nightmare. That area is not suited for housing at all.” He also called for a financial analysis of the impact to taxpayers.
Resident Andrew Kulley worried the settlement could restrain other land owners in the area. “This makes InterCap the dog that wags the entire redevelopment district’s tail.”
Akens said the township moved away from its original reasons for redevelopment: providing more parking at the train station, better traffic circulation, and revitalization of Route 571. He added that he was not moved by the “pretty pictures” in Constantine’s presentation.
Church agreed. “I’m not impressed by the comparison to Palmer Square at all,” he said, adding that Princeton has a university to draw people in to make its downtown area successful.
Resident Tom Tonon said he was insulted by the images in the presentation. “Did you actually visualize that kind of scene? To imply it’s going to look something like that is ridiculous.”
He said the development will probably be similar to the Village Center in Plainsboro, which he called a large shopping center. “When you drive by there, do you see anybody?” he said, referring to pedestrians. “Leave it alone; don’t impose your will on the town.”
Responded Township Planner John Madden: “This is not Princeton; it’s not Plainsboro,” he said. “There are going to be people here. I think this is better than Plainsboro.”
Herbert also noted the awards Plainsboro has received for the design of its Village Center and said that it was not “dead.”
The settlement was also criticized by the Fair Share Housing Center (see letter page 2), which has called for 20 percent of the housing units in the plan to be affordable. Currently, the settlement only calls for 5 percent of the units to be for moderate-income residents.
However, officials maintained that the settlement is contingent upon approval from Judge Feinberg, who will review all aspects of the plan and settlement. If she approves the deal, including the 5 percent affordable housing percentage, she would essentially give her “blessing” and prevent it from being successfully challenged in the future.
According to Herbert, “InterCap was willing to provide 10 percent affordable housing, but it would have boosted the overall number of affordable housing to almost another 70 units.” The mayor and Township Council were insistent that the number of units never go beyond 800.
“In order to maintain a four-story height and to have the promenade, which is a critical feature, and the maximum density with the 70,000 square feet of retail, it was necessary,” said Herbert. “We couldn’t put more housing units on that site.”
The whole idea behind the infamous cases that ultimately brought about the state Council on Affordable Housing — known as “Mount Laurel” — was to provide incentives to private developers to construct affordable housing. But imposing a 20 percent requirements on high-valued property and then requiring the developer to provide infrastructure improvements hinders the possibility of that development, including the affordable housing, ever coming to fruition, Herbert said.
Herbert also said that one of the reasons municipalities, even West Windsor, never have enough affordable housing built is because of the position that groups like the Fair Share Housing Center take. “It would never get built because the community has the right to say, ‘If you’re going to put in high density housing, you better put in the infrastructure,” explained Herbert. “None of that could happen if we were required to have 20 percent. This settlement means there are 40 units that would never have been available for people of moderate income if not for the settlement.”
Not all residents were critical of the settlement. Resident Michael Perciali said residents “should be really lucky to have a project that can be realized finally.”
Former mayor and current resident Bob Murray also supported the idea. “I believe we’ve got the right talent on this council, the right talent on this administration, and we certainly have the right talent in these professionals,” he said. “Do it.”
Residents Al and Janet Lerner also said they liked the plans. “It will enhance the quality of life for West Windsor,” Al Lerner said.
While some residents argued they would rather see the redevelopment plan invalidated, township officials argued that without a settlement, the township’s fate could be much worse if it loses in court.
Prior to any litigation or the township’s adoption of a redevelopment plan, Goldin originally brought a proposal to council for redevelopment that would include 935 units on his property to come in two phases. However, in the meantime, he also submitted a plan to the Planning Board for a multi-use development on his property that requested rezoning for 1,440 condominiums and 88,000 square feet of office and retail space. He requested the rezoning for a mixed-use, transit-oriented development “consisting, in part, of a reasonable percentage of much-needed affordable housing pursuant to the Mount Laurel Doctrine.”
When it became clear the township was not moving in the direction of allowing his 935 units, he filed a lawsuit in December, 2008, alleging that what was then the current zoning for his property was unfair.
But after the township adopted its redevelopment plan in March, 2009, solidifying a smaller number of units, Goldin submitted the most recent lawsuit that challenged the redevelopment’s designation.
Goldin’s attorneys have stated that if they were successful in the most recent lawsuit, and the redevelopment plan was invalidated, they would revert back to their prior litigation, which challenged the zoning and could have yielded 1,440 units.
According to Herbert, the settlement allows West Windsor to get some concessions from InterCap. Prior to the agreement, “there was no commitment to retail; there was no commitment to a promenade,” he said. “There was very little commitment to over $3 million in infrastructure payments that they will be making. From our perspective, the settlement conforms with the redevelopment plan that was adopted back in March of 2009.”
If InterCap was successful, it would not be obligated to provide the amenities, including the infrastructure necessary to support the housing units.
Citing these reasons, council voted to approve the redevelopment agreement. Councilman Charles Morgan said he ran with Councilman George Borek against bringing 1,000 units into the redevelopment area. “And 800 isn’t that far off,” he said.
However, he said that since his campaign, he has learned through the process that the way affordable housing rules work is that commercial office space in town generates the need for affordable housing units. But affordable housing units need to be built along with market-rate units, and more market rate units, in turn, generate more need for more affordable units, and it is a never-ending cycle.
In the redevelopment area, that number could have potentially translated into as many as 1,400 or 1,600 units, and at least three developers he has spoken with since then said that it would be hard to do the project without a significant number of housing units.
“That central space is expensive, and somebody’s got to pay for it,” he said. “When you’re sitting up here on this hot seat, you have a choice of ugly or ugly, and that’s pretty if you can accept 800 units,” he said, pointing to the projected images from Constantine’s presentation.
Morgan also said that if West Windsor won the lawsuit in court, it would still face hardship because it would have a redevelopment plan but no willing developer to build it. “We’ve got a guy out here who wants to do it,” he said. “The logic of the whole thing tells me that settling is very smart. One of the conditions here is that there is no commercial office space here, so we don’t have that commuter issue in the morning and evening. That was an essential component of the settlement, and it’s not there, and they accepted it.”
“There is pending litigation that can cost us a significant amount of money,” said Councilman George Borek. “You might not like it, but you can be rest assured we’ve done our homework on it. We’ve done our due diligence.”
“The public wants it,” said Councilman Kamal Khanna, referring to the comments he said he heard from 3,000 residents whose doors he knocked on during his election campaign. “I think we need it, and now’s the right time to do it. Everything should be done to settle this case.”
Despite her dismay at the circulation design and lack of bike lanes, Ciccone voted for the settlement. “We have a redevelopment plan, and we have a landowner who chose to sue us, and that’s where we are now,” she said.
“It’s really now or never,” said Geevers.
According to a memo Herbert provided to the council, “the development would be consistent with the current redevelopment plan, which allowed 350 units and additional units based upon infrastructure and amenity contributions.” Those infrastructure and amenity contributions “include the construction and maintenance of a promenade, the reimbursement of redevelopment fees, and the construction of traffic improvements both within and outside the redevelopment site, justifying the additional units.”
The integrated development would not include any office space. Under the agreement, InterCap will be required to construct 70,000 square feet of retail space correlated to the phasing of residential units.
That comes in three phases, with the first 25,000 square feet of retail to be constructed no later than when a certificate of occupancy is issued for the first 251 units. By the time a CO is issued for the 501st residential unit, a total of 50,000 square feet of retail must be completed. The remaining 20,000 square feet (70,000 total) is to be constructed no later than the issuance of the CO for the 800th residential unit.
There is also a provision that requires InterCap to build an additional 30,000 square feet of retail space if, during the previous 18 months, 95 percent of the first 70,000 square feet of retails space is occupied at an average base rent of $30 a square foot.
The Township Council’s next step in the process is to review the two ordinances that go along with the settlement agreement and prepare to introduce them. Herbert said they will be reviewed during an upcoming agenda session.
The first ordinance puts into place the standards as they apply to the InterCap property and identifies the areas of the redevelopment plan that will not be applied to the InterCap tract. The second ordinance guarantees that the terms of the settlement and redeveloper’s agreement will remain in place, even if the township’s redevelopment plan is struck down in a third party litigation, even though Planning Attorney Gerald Muller explained in a memo to council that none has been filed to date.
