Birchwood builders ask court to force Cranford’s hand

CRANFORD — S. Hekemian might have received court approval last year to build an apartment complex and parking garage on Birchwood Avenue, but the legal wrangling is far from over. In fact, a few weeks ago the developer had to file yet another civil lawsuit to raise the street a foot in order to satisfy state regulations.

The civil action came  after the township failed to respond to repeated requests by Cranford Development Associates to give their blessing on raising a 300-foot stretch of Birchwood Avenue a foot to comply with New Jersey Department of Environmental Protection regulations.

The developer is asking the court to permit regrading the stretch of roadway, at the developers expense and “order Cranford Township to take all formal actions necessary” to allow it.

As part of the regrade effort, the developer will also install three new storm drains to the municipal storm sewer system along Birchwood Avenue. This will, they said, improve drainage for properties along this street.

CDA, a division of S. Hekemian, pointed out that regrading this area will not have an effect on flooding because all flood water storage that is lost due to construction will be offset by newly created on-site flood storage. Re-grading the street also will not have any effect on drainage, they said, because the amount of impervious surface cover will not change.

According to the 44-page document filed by the developer in Union County Superior Court Law Division, the stretch of roadway, adjacent to the driveway of the development project, has to be raised in order to comply with NJ DEP requirements.

Although the apartment complex and parking facility is not being constructed in the flood way and the NJ DEP does allow construction in flood fringe areas, all state regulatory standards must be met. That is where the developer ran into the latest problem.

One of the regulatory standards involved with the permitting of this project is that any parking within a flood fringe area must be at least one-foot above the flood hazard area.

The roadway also must provide “at least” one emergency exit route that is one-foot above the flood hazard elevation, which the developer said they attempted to initially correct with the NJ DEP.

CDA initially submitted a plan to the DEP addressing these issues, but the state agency found their plan had a “deficiency” and refused to issue any permits until the 300-foot stretch of Birchwood Avenue in question was raised one-foot above the flood hazard elevation.

In court documents, CDA points out the NJ DEP specifically noted the problem they had with the project was not with the design. The problem actually has to do with the fact that one of the two apartment buildings is in a flood hazard area. The problems that both driveways serving this building exit onto portions of Birchwood Avenue where elevations are lower than the flood hazard NJ DEP requirement. The only logical solution, CDA said, is to raise the roadway.

The developer noted in its civil action that the deficiency came as a surprise because it differed from the NJ DEP’s policy in other projects, specifically the Riverfront Redevelopment project in Cranford.

According to the developer, the NJ DEP granted a permit to the Riverfront developer in February 2010 even though the project happens to be in a flood hazard area.

The developer, according to court documents, considered other options in order to comply with the NJ DEP’s requirements, including extending emergency access from the back of the property on North Union Avenue. But, they soon rejected that idea because this particular access was not a foot above the flood hazard elevation for its full length and would also be in violation of the state regulations.

Next, the developer tried obtaining the consent of the owner of Cranford Health and Extended Care to construct an entry and exit on their property, which would have been entirely outside the flood hazard area.  However, the owner never responded to inquires and so this option had to be rejected.

CDA said the most promising means to comply with the NJ DEP regulation was to elevate Birchwood Avenue. They also addressed issues concerning residents, such as “ponding” of rainwater on the street.

After regrading the street it will still run steadily at a downward slope toward Orange Avenue, although any change in slope “will be so small that it probably will not even be noticeable.”

CDA stressed that if the court does not order the township to give approval to regrade Birchwood Avenue and the NJ DEP does not grant a “hardship waiver,” it would be impossible to go forward with the project. In other words, without the proper NJ DEP permitting, the project is dead in the water.

But there are other problems with trying to obtain a hardship waiver from the state. For one, the developer said, it would “needlessly add uncertainty and delay to the project.”

“This is antithetical to the mandate by the Supreme Court in the Mount Laurel decisions that opportunities for the construction of low and moderate income housing be made ‘realistic,’” the developer noted.

Another problem residents and township officials had was the need to remove 72 mature trees from the 15.4 acre site in order to build the apartment complex.

The developer, though, fully intends to replace the 72 trees, some as high as 79 feet, with 180 additional trees. That is 108 more than will be removed.

The township requested the developer plant 223 trees to replace the loss of the 72 mature trees, but the civil action noted the township provided no proof as to how this would protect public health and safety of the community.

Another issue brought up was the fact the township wanted bike racks for 394 bicycles, but the developer said this was “exorbitant” and greatly in excess of any likely usage for this type of midrise apartment building in this type of location.