West Windsor officials are awaiting a decision by Superior Court Judge Linda Feinberg with regard to the lawsuit filed by InterCap Holdings last year.
According to Township Attorney Michael Herbert, there has been a steady stream of briefs being filed by both sides, and that one appearance before Feinberg was held in October.
“The judge was prepared to rule on all the issues that were raised, but allowed for further briefing on the issue of whether the redevelopment plan was arbitrary and capricious and unreasonable,” said Herbert. “Those briefs have now been submitted. We are awaiting the decision of the judge.”
InterCap filed the revamped lawsuit in May 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.
InterCap charged 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.
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.
Herbert said that during the hearing in October, the township presented its arguments. They included that “InterCap is time-barred from challenging the redevelopment designation, which was made back in 2005, and can’t wait that period of time to all of a sudden make a challenge, and in fact, participate fully in developing the second state, which is developing the redevelopment plan, and only when they are unhappy with the plan — where they wanted to produce over 1,000 units — then change their minds.”
Responding to InterCap’s argument about the lack of reference in the notice about the possibility of condemnation, Herbert said that “the fact is that certainly InterCap’s property is not going to be condemned, nor is any property going to be condemned unless there is a need for road-widening.”
With regard to the density issue raised by InterCap, Herbert said that 350 units are provided in the plan on InterCap’s site at a net density of 19 units per acre — the highest density in the entire township. “We also had a provision to the extent that we can get contributions for infrastructure, meaning roads, sidewalks, and public space, that we could increase that amount accordingly,” Herbert said. “In essence, it’s a flexible plan.”
Herbert said that InterCap’s other argument, that the township is not providing for workforce housing, meaning “middle-income,” is not applicable because that status of income is not covered by Mount Laurel. “We believe that the requirement for 20 percent of the units on their property complies with the COAH rules and Fair Housing statute.”
Township officials are hoping that over the next few weeks, they will have a decision on the bulk of the case. “We’re reasonably optimistic that all the claims except for those that need testimony will be dismissed.”
