A state Superior Court judge has reaffirmed her earlier decision ordering West Windsor to provide documentation from the Planning Board redevelopment review process in preparation for a trial on the “sufficiency” of the designation.
The ruling, in which Superior Court Judge Linda Feinberg denied the township’s motion for reconsideration, was handed down on June 18. In the worst case scenario, the township’s plans for the 350-acre Princeton Junction train station redevelopment area would be invalidated.
“The court shall conduct a trial on the validity of a blight declaration for all of the properties in the redevelopment area,” ordered Feinberg.
The ruling was part of a lawsuit filed by InterCap Holdings challenging the redevelopment zoning. A trial date has not yet, but InterCap has been given 60 days to submit its expert reports and submissions for the court. Following that, West Windsor will receive 60 days to submit their reports and information. And following that, there is a 30-day period for depositions of experts and fact witnesses. West Windsor Planning Attorney Gerald Muller estimated a trial in the matter would not begin until late fall or early winter.
Muller said the township plans to appeal the judge’s order with the Appellate Division. The township has maintained that InterCap missed its chance to file an objection to the township’s redevelopment designation based on a state law that says objections must be submitted to the Superior Court within 45 days of the designation adoption.
The township’s motion to the Appellate Division will question whether InterCap “had a right to go ahead and challenge the designation of the area in need of redevelopment based on the fact that they didn’t file a motion for three-and-a-half years and participated in the process,” said Muller.
InterCap Holdings CEO Steve Goldin said he believes “West Windsor is so strongly fighting this whole thing because they know that 80 to 85 percent of the area won’t qualify” as in need of redevelopment. He said the township’s intent to file the appeal right away, without going through trial and then appealing, is “unusual.”
The township has argued that InterCap’s involvement in the redevelopment planning process should bar it from filing. In her original ruling, however, Feinberg wrote that “the court may enlarge the 45-day time period where the interest of justice manifestly requires such an extension.”
Feinberg extended the timeline based on constitutional questions surrounding the validity of the “in need” designation. In her earlier ruling in January, she wrote “the court’s initial reaction … is that the Redevelopment Study on which the in need designation was based is ripe with constitutional infirmities.”
Along with her most recent decision, Feinberg issued a notice of hearing of the “in need of redevelopment” designation and mandated it be sent to the property owners in the area, which both township and InterCap officials said has already been done.
That order also stemmed from the earlier ruling, issued in January. Feinberg had 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 in her original ruling. “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.”
The notice that was sent to the property owners near the redevelopment area states that the court has ruled that the township’s series of public notices, which ran in October, 2005, were “unconstitutional.”
“The aforementioned public notice failed to apprise relevant property owners that…all property within an area determined to be ‘in need of redevelopment’ is subject to condemnation by the municipality and that property owners have 45 days from the publication of the determination that their property is within the designated area in need of redevelopment to initiate an appeal from such determination,” the notice stated.
The notice stated that all property owners have a right to participate in the hearing, but that in order to do so, those property owners must be “expressly conditioned on your providing the court and all parties with written notice of your intent to participate in the hearing within 30 days of the date of this original notice.”
Failing to submit timely written notice of their intent to participate will waive property owners’ rights to do so, she also wrote. Those who do respond will be “provided an opportunity to participate personally or through counsel and to examine witnesses testifying at the hearing.”
Muller said that township has maintained it does not intend to take any property through condemnation. But Feinberg’s decision was based on a court ruling in 2008 that stated a municipality must give notice of the possibility of condemnation as a result of a redevelopment designation. “We never argued the case was wrong,” said Muller. “We’re not going to actually condemn these properties.”
Muller also said the township believed that even if condemnation were ever to occur, there would be a designated condemnation hearing, at which point property owners would have been given notice and the opportunity to participate.
However, “the bottom line is that they did not follow proper procedure,” said Goldin. “Even though this mayor and council can say they have no intention” to condemn, “any future mayor or council can choose to exercise that right. For a property owner, the concern is not what a current mayor or council says in this municipality, but what someone may say in the future.”
In her January ruling, Feinberg acknowledged some of InterCap’s claims as reasons for allowing the lawsuit to proceed. 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 said.
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.”
InterCap has already prepared a report in which it claims to demonstrate how 80 to 85 percent of the properties do not fit the designation. Goldin likened the situation to that of the Toll Brothers case that led to the development of the Estates at Princeton Junction. “It’s amazing that there is no memory or ability to learn from past actions.”
“There are a lot of similarities,” he said. “A developer comes in with a plan that makes sense. The town, for whatever reason, is not amenable to that, there is litigation, and they could very well end up with the result that would not be what it could be if there was a settlement.”
Goldin said InterCap has already submitted three settlement offers, none of which received a response from the township, he said. There is “no demonstrated interest on the township’s part to settle with InterCap,” he added.
InterCap attorneys have already said that its efforts will not stop at invalidating the redevelopment plan. Nullifying the redevelopment plan would pave the way for InterCap to seek to have its previous zoning also voided. If the redevelopment plan or process is invalidated, attorney Richard J. Hoff Jr., of the Bisgaier Hoff law firm of Gibbsboro, has said the developer will re-file a previous lawsuit that challenged the old commercial zoning of the property.
“In the pending litigation, InterCap, in part, seeks the invalidation of the current redevelopment plan zoning for its property,” said Hoff in a comment to this paper in a previous article. “Further, if the redevelopment process is invalidated and the property reverts to its prior (commercial) zoning, InterCap would reinstitute its original pre-development complaint, which challenged that zoning as illegal and unconstitutional.”
