In the latest round of litigation against West Windsor from InterCap Holdings, InterCap has withdrawn its original lawsuit, and in its place, has filed a lawsuit arguing that the process by which the town studied and determined that the 350-acre Princeton Junction train station area was in need of redevelopment was faulty.##M:[more]##
In its newest lawsuit, InterCap charges that prior to the Planning Board’s adoption of the redevelopment study, “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 alleges 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 alleges that the township did not provide this proper notification.
InterCap also argues that the findings of the study that InterCap’s property, as well as 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 attacks 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 is alleging that is not enough density.
In December, 2008, InterCap’s original lawsuit charged that the township’s zoning designation for the property was 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 alleged 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; and that it is in violation of the Federal Fair Housing Act.
The 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. The lawsuit also alleges that the zoning designation for the property is arbitrary, capricious, and unreasonable.
InterCap is alleging that this violates state law as well as the Federal Fair Housing Act that prohibits discrimination based on familial status.
Since the time of the first lawsuit, when the InterCap property still fell within the research, office, and manufacturing zone, West Windsor passed a redevelopment plan with zoning that supersedes the former zoning.
InterCap CEO Steve Goldin said that because of this new zoning, “our original suit really didn’t make sense in the context of which the zoning changed.” So InterCap decided to withdraw its first lawsuit without prejudice. Doing so permits InterCap to file a new, updated lawsuit, as opposed to doing so with prejudice, which means the company would not have been able to file a new lawsuit.
The township argued that the withdrawal should have been with prejudice, but “the judge ruled in our favor,” Goldin said. “That was an important procedural thing for us.”
The new InterCap complaint was filed on May 1, and “now what happens is the township has a chance to respond,” Goldin says. “At that point, the judge will schedule a hearing. Then we’ll see where that goes.” Goldin estimates that the hearing will take place in late June.
In the new lawsuit, InterCap argues that the determination that the property was in need of redevelopment was not based upon substantial credible evidence, and therefore, that the redevelopment designation for the property and the subsequent redevelopment plan are “unlawful and void.”
“As the determination that the property was in need of redevelopment was not made in conjunction with a timely adopted redevelopment plan, that ‘in need’ determination cannot be permitted absent further review pursuant to the redevelopment law and, as such the redevelopment designation for the property and the subsequent redevelopment plan are unlawful and void.”
Even further, InterCap’s lawsuit states that before the township made the designation that the area was in need of redevelopment, it needed to provide adequate notice of the legal impacts associated with such a redevelopment designation. “During the public hearings on the redevelopment designation, the township and Planning Board repeatedly touted that condemnation would not be a component of the redevelopment process,” the lawsuit states.
Still, the lawsuit argues, the possibility of condemnation should have been stated. “In accord with that promotion, the October 14 and 21, 2005, notices of public hearing on the redevelopment study did not explain or reference the potential for condemnation of the property, nor did it provide the plaintiff or others within the redevelopment area, adequate notice of their collective rights and obligations under the redevelopment law,” the lawsuit states. Because of this, the redevelopment designation and, in turn, the redevelopment plan are “unlawful and void,” the lawsuit alleges.
Similar to the prior lawsuit, InterCap is asking for a “special master” to be appointed, at the expense of the township, to assist the court in determining the highest and best use of the property. Also, like the original suit, InterCap again alleges that the redevelopment plan discriminates against families with children, a violation of the Federal Fair Housing Act, and “represents unlawful fiscal zoning” because it limits the permitted number of dwelling units in the redevelopment plan to 487 units.
“We’re very confident in the strength of our position, both from a public policy standpoint, as well as from a legal standpoint from the legal and planning team we’ve assembled,” Goldin said.
Township Attorney Michael Herbert, however, called Goldin’s lawsuit “old wine in a new bottle. All it is is taking the old complaint and addressing the redevelopment plan.”
He said that InterCap’s complaint that the 487 units in the redevelopment plan is too few “fails to point out that 350 of those units are on his 10-acre site. He divides 487 over 350 acres, even though the housing is going to be concentrated in two areas — one on his site.”
Herbert said the township is filing another motion to dismiss, saying that the matter belongs before COAH. Goldin has already brought the matter before COAH in a separate challenge (see story below). “He’s trying to litigate in two different places, and he can’t do that,” said Herbert.
