Council OKs Settlement with TMB

Livingston's Township Council agreed on Monday to settle with TMB Partners in the ongoing "Builder's Remedy" lawsuit,  which is commonly referred to as the affordable housing case.

"We can settle or not.  If we don't, it will likely go to court," said Mayor Arlene Johnson.

TMB Partners have proposed plans to construct a housing complex with affordable housing units on its property at the corner of South Orange Avenue and White Oak Ridge Road, where Tutor Time is currently located.

"This is often called 'affordable housing,' but that's a misnomer, it's inclusionary housing," said Johnson.  

The settlement will permit TMB to construct a maximum of 62 multifamily units, including 12 rental units to low and moderate income households consistent with COAH guidelines (New Jersey Council on Affordable Housing).  In addition, the 2-building housing complex that TMB is planning will also include 50 market-rate, for-sale apartments. 

New Jersey's Council on Affordable Housing defines moderate income as being between 80 and 50 percent of an area's median income, while low income is defined as 50 percent or less of median income. In Livingston, the moderate income limit is about $49,000 for one person, and the low-income limit is approximately $30,600 for one person.

TMB Partners had sued Livingston under what's called "builder's remedy" when the township previously rejected their plans to construct the complex.  Under New Jersey law, townships must have a plan for providing moderate and low income housing, including allowing higher densities than are otherwise allowed under local zoning rules, and if they do not, builders who propose such projects can take the townships to court to force them to grant approval.

"The settlement reduces the original proposal by 40 percent," said Johnson, noting that the issue and litigation between the parties has been in proess for more than 2 years.  , before adding that TMB also scaled back the height of the building — now planned for roughly 55 feet — and has responded to the township's concerns over the aesthetics of the project.  

"We fought this proposal aggressively," said Johnson.  "Some folks will say that we shouldn't be settling this lawsuit, that since COAH is being dismantled we should wait and see," said Johnson.  "That would be, in my opinion, bad advice." 

Johnson added that she and the other council members had been informed that lawsuits already in process wouldn't be affected by the recent announcement about changes to COAH, so if the township didn't reach a settlement with TMB, the case would go to court, at a cost to Livingston taxpayers.

"That means more litigation costs and whatever the court decides," said Johnson. A special master to the court for the case recommended the site contain between 64 and 76 total units, of which 13 to 15 would be affordable family rental units. "We'd rather be the master of our destiny," said Johnson.

The settlement still needs court approval, but as officials seemed to think it would get the go-ahead, the agreement will put to an end the wrangling between the parties.  Over the past two years, the parties have gone back and forth on the matter and had even reached an agreement on the project, but the terms of that accord were not implemented as nearby property owners  — in particular, members of the Livingston- Short Hills Coalition — questioned the environmental impact of the development of the site, as did Millburn Township, which borders the site.

According to Johnson, who said she spoke with Millburn's mayor on Monday morning about the issue, Millburn is prepared to accept the settlement and even recently issued a statement on the topic. Millburn Mayor Thomas McDermott said Monday afternoon Millburn officials do not have the status in court to approve a settlement. The Millburn Township Committee has been discussing the settlement proposal but its attorney has not heard from TMB Partners.

But at Monday's meeting, there were some residents from Short Hills who came to oppose the settlement and again questioned the environmental impact of the building.

"Water runs directly into the brook (from the current building), we found that out 9 years ago, " said Rosalie Rubin, who lives behind Tutor Time and is a member of the Livingston Short-Hills Coalition.  "Has that been addressed in the settlement?"

Still, other residents worried about how the look and feel of the neighborhood would change.

"This will be looming over the trees," said Tom Hildner, a Short Hills resident who lives nearby. 

Livingston resident Bernard Searle agreed.

"It's going to stick out from the rest of the area," he said. 

Mayor Johnson and other members of the council pointed out that by agreeing to settle, the council wasn't approving construction plans and that some of these details could be addressed later.

"There will by no means be a shovel in the ground tomorrow," said Johnson.

Michele Meade, the Township Manager, added that "the settlement is by no means to replace the site plan review," she said.  Livingston's Planning Board will still have to approve final design and construction applications to make sure they're consistent with regulations.

"TMB wanted more, Livingston and Millburn wanted less," said Deputy Mayor Rudy Fernandez, who also said during the meeting that "not everyone is going to be happy, we understand that.  We are trying to minimize the impact."

One Livingston resident, though, seemed content with the settlement. 

"I like what you did, I like this settlement," said Bob Hunter.

Editor's note: Council member Stephen Santola recused himself from voting on the matter, as he has previously done when the issue has been discussed. 

Also, the draft of the resolution for the settlement that the council voted on is available on the town's website (in agenda on meeting) and by clicking here.