Another blow to township in Birchwood battleground

CRANFORD — Efforts to fight the Birchwood development took another step backward last week when the court gave its nod to the developer’s requests.

At a special hearing Feb. 5 Judge Lisa Chrystal approved the recommendations of special hearing officer Douglas Wolfson to approve Cranford Development Associates’ site plan, shooting down the township’s efforts yet again in fighting the project.

Chrystal set April 22 for the final hearing that will determine if the township is in compliance with its affordable housing obligations or not.
In the 1980s a legal decision involving the town of Mt. Laurel laid the ground work for the Mt. Laurel doctrine, a controversial judicial interpretation of the New Jersey State constitution, which spelled out exactly what towns could and could not do when it came to fulfilling their affordable housing obligations.

This doctrine required that towns, like Cranford, use their zoning powers in an affirmative manner to provide realistic opportunities for the production, or development, of housing for low and moderate income people. Unfortunately, although the township discussed and even planned multiple times to satisfy their affordable housing obligation, they failed to solidify these plans and follow through. This led to several builders remedy cases against the township, including the one by CDA.

Now the case is mired in lawsuits and appeals, with the township on the losing side of court decisions because of not filing an affordable housing plan years ago as required by the state.

For instance, Cranford lost an appeal in November to have Elizabeth McKenzie removed as special master over the case, saying she had been proven to be biased because she admitted to being an affordable housing advocate. The case was thrown out of court, but the township vowed to continue its fight to stop the development.

McKenzie penned two opinions for the court in the past, one finding that CDA’s builders remedy case against the township was valid, the other declaring that while there were environmental issues on the Birchwood development site, they were manageable through remediation.
The township has been trying to appeal Chrystal’s 2011 decision in a builder’s remedy lawsuit allowing CDA to construct 360 apartments, including 60 affordable housing units.

The Birchwood Avenue project has been the subject of contention among residents living nearby and township officials alike, but despite the court ruling in favor of CDA multiple times, Cranford continues to fight the project, regardless of the cost.
Philip Morin, the former township attorney and currently the township’s legal council on the matter, is an experienced land use attorney and partner with the firm of Florio, Perrucci, Steinhardt and Fader.

He said when the township made the decision to fight the project and CDA subsequently filed the builders remedy lawsuit, the township made a commitment to fight it and they have stood behind that commitment.

Last fall LocalSource looked into the township’s Birchwood legal tab so far by using the Open Public Records Act. According to legal bills back to 2008 the township had spent $578,989.76 to fight the Birchwood development as of last fall.

The bills include charges from four separate legal firms that either represented the township regarding Birchwood, or continue to handle legal issues involving the proposed development.

Most of these legal bills involved going to court to fight CDA, a subsidiary of the S. Hekemian Group, which began efforts more than five years ago to develop the 16-acre tract of land on Birchwood Avenue. At the time, the township was already fighting another developer who wanted to construct affordable senior housing on a narrow parcel of land on South Avenue adjacent to the railroad.

Since last fall it is not known how much the legal cost to taxpayers has increased, but according to former township attorney Philip Morin, land use legal costs are expensive.

Morin admitted that the township’s desire to fight the project would be costly. However, legal bills from firms handling the case preceding Morin were billed at a higher rate than he is charging the township.

For instance, since Feb. 7, 2012, when Morin’s firm began billing the township for his legal work on the case, the tab escalated to $53,344.52.
Charges he billed since then, however, are unknown.