New Jersey Superior Court Judge Linda Feinberg is expected to hear a motion by West Windsor to reconsider her recent ruling in a lawsuit that could lead the township’s redevelopment zoning to be overturned.
Oral arguments by the township, and InterCap Holdings — the plaintiff in the lawsuit — are scheduled to begin at 10 a.m. on Friday, March 26, in the Mercer County Courthouse in Trenton.
The township maintains that InterCap missed the deadline to challenge the redevelopment area when it was designated by the planning board in 2005. It also argues that InterCap participated fully in the creation of the redevelopment plan — adopted in 2009 — and cannot now turn around and challenge it.
InterCap sued West Windsor claiming that the town used a faulty process to determine that a 350-acre area surrounding the Princeton Junction train station was in need of redevelopment.
Steve Goldin, InterCap CEO, is unhappy with the amount of housing — capped at some 500 units — allowed under the redevelopment plan. The developer has said he wants to construct 1,440 units on his property alone. The 24-acre parcel is located in the redevelopment area on Washington Road.
In a ruling in January, Feinberg allowed InterCap to challenge the designation and even acknowledged that allowing the argument “creates the possibility that the designation will be invalidated.” That would, in turn, nullify the redevelopment plan.
“The court’s initial reaction… is that the Redevelopment Study on which the in need designation was based is ripe with constitutional infirmities,” said Feinberg in her ruling.
Goldin has been urging the township to bargain with him. “One would think West Windsor residents would urge the mayor and council to settle the lawsuit.”
“They (the residents) are going to start to listen to what local realtors are saying — that ‘Plywood Junction’ is something prospective buyers see and ask about, and the township’s actions are now hurting residents’ home values,” he added, referring to the state of downtown Princeton Junction, where there are several vacant buildings on Route 571 with plywood-covered windows.
Township officials declined to comment on the matter. They maintain, however, that although the court has the right under certain circumstances to lengthen the time period to file an objection of a redevelopment designation, which Feinberg did in this case, doing so in this instance is inappropriate.
InterCap charges that prior to the Planning Board’s adoption of the redevelopment study in 2005, it failed notify property owners in the study area that they could be subject to condemnation. The lawsuit alleged that the state requires notification even if the township’s intention is not to do so.
The township argues that neither InterCap’s property nor any other property in the redevelopment area would be subject to condemnation, unless there is a need for road widening.
The notification requirement is the result of a 2008 court decision that was not in effect when the planning board was conducting its redevelopment hearings. Town officials believe it’s unfair to enforce the requirement on the township retroactively.
Feinberg ruled in January that the timeliness of InterCap’s challenge and the question about the township’s notification of property owners “are the only two issues that warrant extended discussion at present, as their disposition resolves or renders the other issues moot for the time being” because they could invalidate the redevelopment designation if she rules in Intercap’s favor.
On the challenge issue, Feinberg agreed that InterCap did not file an objection to the Planning Board’s redevelopment designation within 45 days, as required by state law. However, she found that “the court may enlarge the 45-day time period where the interest of justice manifestly requires such an extension.”
Feinberg also sided with InterCap in its arguments that the township may have violated the notice requirement because it did not describe the condemnation implications of a blight designation.
The judge gave the township 30 days to submit transcripts and evidence from the Planning Board’s redevelopment designation process. The township has complied with that order, according to Planning Board Attorney Gerald Muller.
Feinberg also gave indications in her ruling that even if the township is upheld on the notification issue, there may be other problems with its redevelopment plan.
She wrote that there were “significant issues regarding the propriety of the in-need designation” in that half of the redevelopment area was deemed to fall under the “underutilization” category — one that has been challenged and struck down in other cases.
In the township’s own redevelopment study, some of the parcels were designated as “in need of redevelopment” by using just the word “underutilization” and nothing else, she pointed out.
InterCap claims that West Windsor’s findings that InterCap’s property and other properties in the redevelopment area “were in collective need of redevelopment were not supported by substantial credible evidence as required by redevelopment law.”
Councilman Charles Morgan recently used Feinberg’s ruling as political fodder against Mayor Shing-Fu Hsueh as evidence that the township has been mismanaged.
During a council meeting earlier this month, Morgan said that because “we’re suffering from a lack of leadership,” the township has already “lost the first round of litigation in court.”
“Why? We did not give notice to the property owners,” he said. He also said that while there was no notice requirement at the time the redevelopment area was designated, a ruling came down a few years later — before the redevelopment plan was adopted. At that time, the township’s lawyers should have picked up on the new requirement, he said.
