New Jersey Superior Court Judge Linda Feinberg has given West Windsor 30 days to provide documentation from the planning board redevelopment review process so she can determine the “sufficiency” of the designation.
The ruling was part of a lawsuit filed by InterCap Holdings challenging the redevelopment zoning. “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.
“We are pleased that the court has recognized the merits of our case,” said InterCap’s Steven Goldin, a West Windsor resident. “As always, we remain open to a settlement with the Township, provided those discussions are based on economic reality for the future of the area surrounding the Princeton Junction Train Station.” Goldin declined to elaborate on what he is looking for in a potential settlement.
However, West Windsor officials say Feinberg’s ruling is not irreversible — nor is it a victory for InterCap. “The court has the right under certain circumstances to enlarge the time period for filing” an objection of a redevelopment designation, which was done by Feinberg in this case, explained West Windsor Planning Board Attorney Gerald Muller. “We don’t agree that was appropriate.”
The township had argued that InterCap had missed the deadline for challenging the redevelopment designation, which was made in 2005, and that it could not wait to make a challenge while also participating fully in the developing the redevelopment plan, which was adopted in 2009. InterCap filed when it was unhappy with the plan, in which it wanted to produce 1,440 units, the township argued.
Muller said West Windsor officials are evaluating their next move. “Right now, given the court’s ruling, we have to go to trial,” Muller said. “We’re going to have to make a decision on whether we’re going to do that or take steps to have it reversed.”
Either way, the ruling has serious implications for West Windsor and can jeopardize its redevelopment project if InterCap argues its case successfully. Allowing InterCap to challenge the designation “creates the possibility that the designation will be invalidated, which would in turn nullify the redevelopment plan,” Feinberg said.
InterCap filed a revised version of its lawsuit in May. Originally filed in December, 2008, InterCap revamped the suit to reflect the adoption of a redevelopment plan. In the lawsuit, InterCap argued that the process by which the town determined that the 350-acre Princeton Junction train station area was in need of redevelopment was faulty.
InterCap argued that the study’s findings that InterCap’s property and other properties in the area “were in collective need of redevelopment were not supported by substantial credible evidence as required by redevelopment law.”
The lawsuit also attacked the density — up to 487 units as a base number called for in the redevelopment plan — saying that the “foregoing level of residential development equates to just over 1 unit per gross acre within the designated redevelopment area.” InterCap alleges that is not enough density.
The township countered that 350 units were provided in the plan on InterCap’s site at a net density of 19 units per acre — the highest density in the township. There was also a provision that to the extent the township could get contributions for infrastructure, meaning roads, sidewalks, and public space, it could increase the number of housing units accordingly.
InterCap’s lawsuit also alleged 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.
InterCap charged that prior to the Planning Board’s adoption of the redevelopment study in 2005, “the Planning Board failed to provide notice that the parcels identified within the redevelopment study would be subject to condemnation pursuant to the redevelopment law.”
Essentially, the lawsuit alleged that state law requires a township to notify property owners ahead of the process that redevelopment could include condemnation of their properties, even if the township’s intention is not to do so. InterCap alleged that the township did not provide this notification.
The township had argued, however, that neither InterCap’s property nor any other property in the redevelopment area would fall subject to condemnation, unless there were a need for road widening.
In her ruling, Feinberg points out that under redevelopment law, when a Planning Board designates an area as being “in need of redevelopment,” objections to the determination must be submitted to the Superior Court within 45 days of the designation adoption — something that InterCap did not do.
However, “the court may enlarge the 45-day time period where the interest of justice manifestly requires such an extension.” To have that period enlarged beyond 45 days, it must meet one of three exceptions: that the designation involves important and novel constitutional questions; there are important public rather than private interests that require adjudication or clarification; or there are legal questions raised by administrative officials.
In the InterCap case, Feinberg ruled there were two important matters to consider: the timeliness in which InterCap filed and the alleged insufficiency in the township’s notice of the public hearing for the designation. “These 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,” she wrote.
Feinberg believes that InterCap’s claims of alleged fiscal zoning and discrimination against families did not rise “to the level of important and novel constitutional issues warranting a significant enlargement of the time” InterCap had to object to the township’s designation.
However, Feinberg ruled 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 points out.
This description mirrors the characterization struck down in other case law, she wrote, and as InterCap argues, “appears to support the conclusion that the redevelopment study is insufficient. Given the condemnation implications of a progressing redevelopment project, the court cannot ignore these insufficiencies and their constitutional ramifications.”
Feinberg also sided with InterCap in its arguments that the township violated the notice for the redevelopment designation in that it did not describe the condemnation implications of a blight designation.
The township’s claims that it has no plans to condemn the properties in the redevelopment area “merely highlights the cloud that hangs over the property and the others in the redevelopment area,” she wrote. “These properties have been designated in need of redevelopment and are subject to condemnation by the township at any given time, despite counsel’s insistence to the contrary.”
This “cloud” of uncertainty becomes more troublesome because that condemnation may never occur, leaving property owners in limbo and creating an “unfairly difficult situation” and one for which the township could leave them without a remedy, she added.
Feinberg acknowledges in her ruling that siding with InterCap’s claims could affect the money and other resources the township has already spent in forming its redevelopment plan. However, in addition to allowing InterCap to now challenge the township’s designation by allowing the exception to the 45-day rule, Feinberg said the ruling could benefit the public by allowing the construction of more affordable housing units in the redevelopment area.
InterCap’s participation in forming the redevelopment plan “does not dilute the serious prevailing constitutional issues raised by the approved redevelopment study and subsequent redevelopment plan,” Feinberg wrote.
Feinberg denied motions by both InterCap and West Windsor for summary judgments and instead gave West Windsor 30 days to submit transcripts of all proceedings and exhibits presented to the Planning Board in support of the “in need of redevelopment designation.” Then attorneys will be able to submit supplemental briefs and request oral arguments solely on the issue of the area in need of redevelopment.
