Developer is awarded attorneys’ fees and costs over town’s settlement’s breach; Hillsborough officials will address issue again on July 13

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A judge has awarded attorneys’ fees and costs for breach of a court-approved settlement over a proposed inclusive residential development in Hillsborough.

Somerset County Superior Court Judge Kevin M. Shanahan held that Hillsborough violated the settlement when its planning board failed to approve a site plan for 96 units, including 23 affordable-housing units.

Campus Associates LLC sought preliminary and final major site plan approval, “c” bulk variances and waivers to construct a multifamily development consisting and a clubhouse, with associated parking, lighting, landscaping, utilities, stormwater and improvements, in a Multifamily Inclusionary Overlay District within the I-3 Light Industrial Zone, at 4 Campus Dr.

Municipalities should not “be permitted to repeatedly violate a Court Order and flout its affordable housing obligations under the Constitution without sanction,” the judge wrote in his June 7 decision, according to the settlement document.

In May 2019, the township and Campus agreed that the development plan could proceed and would be made conforming through a zoning ordinance amendment, according to the statement. The court approved the agreement in September 2019. However, the zoning ordinance was not adopted, and in November 2019, Campus filed a motion to enforce litigant’s rights to compel the ordinance adoption.

Finding on Dec. 13, 2019, that the township had anticipatorily breached the agreement, the court directed the township to introduce the ordinance in January 2020 and adopt it by Feb. 15, 2020, according to the statement.

The adoption took place in August 2020, and Campus submitted an application for preliminary and final major site plan approval.

The planning board denied the application at its meeting on Feb. 25, 2021, stating, among other reasons, that a 150-foot stream buffer was needed. Campus maintained it complied with a 50-foot buffer required by the Department of Environmental Protection. In addition, the planning board wanted Campus to perform a drainage study on the adequacy of a proposed stormwater runoff pipe, according to the statement.

On March 4, 2021, Campus notified the township it was in default of the settlement agreement. Campus contended that the township did not adopt the first ordinance until the court had compelled it to do so and Campus had filed its initial motion for relief to litigants. Campus further asserted that the township failed to adopt the additional ordinance amendment to make the Campus development fully conforming, according to the statement.

Campus stated it was compelled to file a second motion to enforce litigants’ rights because of the township’s “continued defiance” of court-approved settlement agreements with it and the Fair Share Housing Center, according to the statement.

Campus’ lead counsel, Marc Policastro, chair of the Environmental Group at Giordano, Halleran & Ciesla in Red Bank, said in a statement, “The decision is a clear signal to municipalities – don’t mess with settlements.”

“To the extent that municipalities are recalcitrant, they are not just going to get a slap on the wrist. Public policy is paramount,” added Policastro, who was assisted by Giordano shareholders Paul Schneider and Matthew Fiorovanti, and associate Linda Lee.

 

Shanahan ordered Hillsborough to introduce, at its next regularly scheduled Township Committee meeting, a zoning ordinance amendment to make the application by developer Campus Associates LLC fully conforming.

The Township Committee held an Executive Session on June 15.

“That was always a possibility that there would be litigation following the board denial,” Mayor Shawn Lipani said in a statement released on June 23. “However, the denial was based on factual testimony with respect to the environmental concerns. We [the township] were hopeful that based on our longstanding commitment to abiding by the unfunded mandates of the courts relative to our affordable housing obligations, a different solution and outcome would have been the result.”

As a result of ruling, the township had to amend a previous ordinance, which, in essence, will permit the Campus application and will avoid Campus applying for any variances.

The township must further acknowledge that the judge conducted an exhaustive discussion and decision in favor of the township’s longstanding commitment to affordable housing, according to the June 23 statement.

Upon the adjournment of the executive session and the reconvening of the open session, the Township Committee introduce a compliance ordinance entitled: “An Ordinance to Amend, Revise and Supplement Chapter 188 “Land Use And Development”, Article V “Districts Standards”, Section 188-106, “L-1, L-2, L-3 Light Industrial Districts, Most Notably Section 188-106 H, Entitled “Multifamily Inclusionary Overlay District” of The Township Code of Hillsborough, County of Somerset, State of New Jersey.”

The public hearing for this ordinance is scheduled for July 13.

 

The fees and costs remain to be determined and will cover legal fees and costs on the planning board application and two motions to enforce litigants’ rights, according to the statement. The total will also include fees and costs for professionals such as engineers and architects, Policastro said in the statement.