HOWELL – The Township Council’s recent rejection of a developer’s agreement may result in litigation being filed against Howell by a developer, according to the municipal attorney.
A developer’s agreement is an agreement between a governing body and a developer to expressly define a development project’s rules, regulations, commitments and policies for a specific period of time.
In 2018, the developer of a project known as The Fountains received approval from the Howell Planning Board to construct 105 age-restricted residential units in several multi-story buildings on Route 9 north.
As part of the application process, the developer removed a proposal to construct 26 residential units at a second location in Howell.
During the Sept. 14 meeting of the Township Council, a developer’s agreement relating to The Fountains was on the agenda.
As to why it took several years for the developer’s agreement to come before the council, Township Attorney Joseph Clark said, “With regard to the period of time that elapsed between the Planning Board approval and the appearance of the developer’s agreement on the council’s agenda, I will say it is not unusual.
“The developer’s agreement is usually the final step prior to construction and includes information regarding the bonding and guarantees, among other things. Those sorts of details can only be worked out after the plan/subdivision is finalized and perfected, which happens after Planning Board approval.
“Something that also happens after Planning Board approval is that the applicants need go through resolution compliance, obtain all necessary outside agency approvals – which can take quite a bit of time – file any necessary deeds and easements, perfect the subdivision and site plan, including the filing of a map, post bonds and escrow, and hold a pre-construction meeting with the township. It is not unusual for these items to take an extended amount of time in the best of circumstances, let alone the COVID pandemic,” Clark said.
When a motion was made to approve the developer’s agreement for The Fountains, Democratic Mayor Theresa Berger, Republican Deputy Mayor Thomas Russo, Democratic Councilman John Bonevich, Republican Councilwoman Evelyn O’Donnell and Republican Councilwoman Pamela Richmond voted “no” and the motion failed 5-0.
Bonevich said the developer’s agreement was initiated before he joined the council “so have them (the developer) come back and talk to us.”
Berger, Russo, O’Donnell and Richmond did not say why they voted “no” on the motion to approve the developer’s agreement.
Following the vote, Clark said, “Now that we don’t have a developer’s agreement in place, what would you (council members) like me to do? Because we are going to be in litigation very shortly, and don’t forget that a settlement agreement with this developer allows them to build 408 residential units. How would you like me to handle it?”
Clark said The Fountains was approved by the Planning Board in 2018 “and the developer is deeding over developable land (at another location in Howell) where 26 residential units were going to be (built), but now (through an earlier settlement) we are going to have 408 (market rate, non-age-restricted) units, so what would you like me to talk to them about?”
Bonevich said the land the developer is supposed to deed to Howell is wetlands.
Clark said some of that property can be developed.
“Let’s litigate,” Richmond said.
After hearing Clark discuss the possibility of more than 400 housing units being built, Russo made a motion to reconsider the vote on the developer’s agreement.
O’Donnell said, “I will second (Russo’s) motion (to reconsider the vote) considering that we would go from 100 (housing) units to 408 (housing units), and obviously this community is continuously concerned with over-development, and I think the extra 308 units would certainly lend itself to over-development.”
Richmond said, “With all due respect and playing the political game, this is what the Democrats want. They think we should vote ‘no’ on all this development, giving them what they want. We are obliging, I am a servant of the people, this is what they want.”
Because Russo’s motion to reconsider the initial vote on the developer’s agreement received a second, a vote was taken. Russo and O’Donnell voted “yes” on the motion to reconsider the vote. Berger, Bonevich and Richmond voted “no” on the motion to reconsider the vote.
The motion to reconsider the initial vote failed 3-2 and the council’s rejection of the developer’s agreement relating to The Fountains remained in place.
“We will be sued and the developer will … look to build 408 units. I don’t need a crystal ball for that. How do you want me to deal with it? I am not going to wait until tomorrow, I don’t get paid to wait until tomorrow, I want guidance now,” Clark said.
Bonevich said, “We all agreed and we voted.”
Berger told Clark to fight any litigation that may be filed regarding The Fountains.
