Legal bills mounting as Cranford endures Birchwood saga

By Cheryl Hehl, Staff Writer 

CRANFORD — Although the township has been fighting the Birchwood Development for years, in the end taxpayers end up footing the legal bill that grows day by day. However, the township stands strongly behind this effort and does not intend to back down. Regardless of the cost.

According to legal bills dating back to 2008, obtained by LocalSource using the Open Public Records Act, the township has spent $578,989.76 to fight the Birchwood development. And the tab is still running.

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

Included was charges the township paid to former township attorney Carl Woodward’s firm for costs dating from January 2009 until the present; legal services by Stuart R. Koenig, the attorney hired by the township in connection with the Mt. Laurel litigation from July 2009 to January 2011; charges from January 2012 to present from township attorney Philip Morin’s law firm of Florio, Perrucci, Steinhardt and Fader; and invoices for services rendered by court appointed Special Master Elizabeth C. McKenzie.

The township is currently deeply involved in an ongoing court appointed site plan review with Cranford Development Associates, a subsidiary of the S. Hekemian Group, which began efforts more than five years ago to develop a 16-acre parcel of land on Birchwood Avenue. The township, already fighting another developer who wanted to construct affordable senior housing on a narrow parcel of land on South Avenue adjacent to the railroad, took an immediate stance against the project.

Since then the township has had two builder’s remedy lawsuits brought against them by these developers, including multiple appeals and counter lawsuits requiring the expertise of seasoned environmental and land use attorneys. Expertise of this type, though, is costly. Especially in light of the fact the township was on the losing end of these lawsuits and appeals.

The majority of these legal costs, though, occurred prior to trial when attorneys are doing discovery work on the case. This includes taking depositions from witnesses, researching information about site suitability and how environmental and land use law can be applied to a particular legal case.

For example, when Woodward’s firm, Carella Byrne, Carl Woodward and Brian Fenlon, took on CDA’s builder’s remedy lawsuit, by the time the trial was over the legal bills escalated to $430,193. But, according to Morin, that is what it costs to defend a builder’s remedy case.

“There was intensive discovery involved with that trial and a significant amount of time had to be spent preparing for trial,” the township attorney explained, adding that this particular trial lasted 14 days, which is considered quite long.

Morin should know. He recently spent months preparing for the site plan review hearing now being held in the Elizabeth courthouse.

Although Morin, an experienced land use and environmental attorney who is a partner with the firm of Florio, Perrucci, Steinhardt and Fader, just came aboard as township attorney, his expertise was exactly what was needed. Not to mention that he only charged the township $140 an hour, a significant break for his experience.

Still, since Feb. 7 when Morin’s firm began billing the township for his services, through Aug. 7, the tab already was up to $53,344.52. The majority of that amount, however, was in preparation for the site plan hearing when Morin’s legal bills to the township tallied $14,901.50 for 123.20 hours of work in June and $11,032 for 78.80 hours in July.

Regardless, Morin as well as other former township governing body members, including former mayor Dan Aschenbach who spent 18 years serving on the governing body, stands solidly behind the effort to stop the development project that abuts a flood plain area.

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

“When you think about the flooding impact from a safety standpoint along with the level of flooding that occurs along the Casino Brook, the township had no choice but to protect residents living in this area,” Morin said, pointing out that “the governing body is 100 percent committed to fighting this development.”

That commitment, however, resulted in some hefty legal bills, including $15, 783.48 from attorney Stuart R. Koenig who took on “Mt. Laurel litigation” from 2009 through January 2011.

Koenig was brought on to research Cranford’s affordable housing obligation, which specifically had to do with a legal decision involving the town of Mt. Laurel in the 1980s. This decision, among others, established that municipalities, had to provide low and moderate income housing, whether they liked it or not.

Later, the Mt. Laurel doctrine, a controversial judicial interpretation of the New Jersey State constitution, laid out exactly what towns could and could not do when it came to fulfilling their affordable housing obligation. This doctrine required that municipalities, 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 those plans and follow through. This led to the builders remedy lawsuits and more than a half million in legal costs as a result.

Complicating the issue, because of the complexity of the Mt. Laurel rulings, in 2009 the township realized they needed more than the expertise of a township attorney, who not only had other township issues to handle but private practice obligations to juggle. Shortly after, the township hired Koenig.

Already racking up bills was McKenzie, assigned by the court as a “special master” at $250 an hour to oversee and provide impartiality so the township and CDA could come to a meeting of the minds. Despite this, in 2010 the township became embroiled in a trial which McKenzie, of course, was required to attend and provide input throughout.

From conference calls with the judge hearing the case that came to $375 for an hour and a half conversation, to charging $7,624 to attend a two-day trial and to “review trial notes,” McKenzie’s tab began to mount.
As of the end of May, McKenzie had sent the township $78,940.94 in bills since 2009. It should be noted that this amount reflects Cranford’s portion of the special master’s charges, in addition to other legal charges levied against the township.

CDA and the township were required to divide many of the bills with the township, as ordered by the court. Which means McKenzie, according to the legal bills reviewed, also charged CDA in excess of $70,000 for her services involving this case.

Many of McKenzie’s bills involve conference calls to other attorneys who handled the township’s legal issues involving CDA and the builder’s remedy lawsuits and appeals, while others involved the time to write reports, review correspondence, pick up copies from the printer, as well as attend case management conferences relating to the litigation. Plus, the township still has to contend with bills for the court-appointed site plan review now taking place.

But McKenzie and Morin’s bills are not the only legal bills the township is juggling. Invoices for services involving CDA rendered by the Cranford firm Rogut McCarthy from Oct. 19, 2011 to Jan. 23 of this year tallied $17,227.82.

However, it is impossible to tell what this litigation is about because the majority of information on three bills was redacted because it involved attorney-client privilege. This particular information is exempt from disclosure as a government record under OPRA law. Nevertheless, this firm charged the township $145 an hour for legal services they provided.