Millburn Responds to Public on Affordable Housing Case

Millburn's Township Committee issued a statement on Monday in an attempt to correct some of the information that has been circulated in Millburn-Short Hills about the Livingston affordable housing cases.

Mayor Thomas McDermott said the committee has been getting a number of e-mails from residents, and the statement is a response to them. It's also a response to the comments made at the last Township Committee meeting from neighbors asking the township not to settle on the case.

"I don't think (the people responding to the committee) were told everything in the history (of the case)," he said. "They're not getting the entire package... We're hoping (the statement) puts (the case) in proper perspective."

Township officials have "friend of the court" status in the case between Livingston and TMB Partners over constructing an apartment building at the corner of White Oak Ridge Road and South Orange Avenue, the current location of Tutor Time. The building would contain some housing for those of lower incomes.

But Millburn and Livingston officials are pursing a settlement in the case. The proposed settlement is to construct 50 market-rate units of housing and 12 at the more affordable rate. Also, the building would be about 65 feet tall. The original proposal was for 100 units, 20 of them at the affordable rate, in a 75-foot-tall building.

McDermott said, though, TMB Partners representatives have yet to respond to anyone about the settlement officers. "For all we know they might not accept it," he said. "We'll see where it goes." If TMB Partners rejects the settlement offer, it would go back to court.

Below is the Township Committee's full statement, and attached is a flier the Short Hills Association distributed at the train stations about the case.

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STATEMENT BY THE TOWNSHIP COMMITTEE

TMB LITIGATION

Recent presentations made to the Township Committee by concerned citizens, as well as statements made in the public media, have led us to conclude that we should provide a  balanced perspective to the public dialogue on this subject about which various opinions exist.

The Township Committee's ability to comment is unfortunately, but necessarily, somewhat restricted by the fact that we have directed the team of Township officials, attorneys and consultants engaged by the Township in connection with this litigation, to respond to the invitation to discuss a settlement proposal, which has been advanced by the developer, TMB, to Livingston and Millburn Townships.  As much as we might like to do so in order to more fully inform the public, we are not at liberty to discuss a number of the elements which are under consideration. 

Nevertheless, it can be said without any equivocation that the Millburn Township Committee Members share the concerns of the effected property owners over the size and scope of this development proposed on the Livingston Millburn border.  While in hindsight it seems that prior proposals for the development of that site which were also resisted, now look considerably more acceptable than what is now the subject of the current litigation, those options are no longer available, and we are forced to deal with what is presently before us. 

It is important to understand that we are not engaged in a typical development situation where an entity proposes to develop a site under the existing Zoning Ordinance, perhaps requesting variances and other waivers and where surrounding property owners take part in the proceedings to question the proposal on grounds of traditional zoning regulations. 

The TMB proposal is a case initiated against Livingston Township alleging that by reason of Livingston's failure to meet its obligations with respect to the provision of an opportunity for the construction of low and moderate income housing, the developer of the site in question is entitled to extraordinary relief.  You may remember this type of case as being referred to as a "Mount Laurel" case.  This is because the first case of its type which was decided by the New Jersey Supreme Court arose from Mount Laurel Township in South Jersey.  Subsequent "Mount Laurel" cases have further defined the fact that a developer is entitled to obtain the construction of more units than would otherwise allowed under the municipal zoning in return for the developer, including in its development, low and moderate income housing designed to fulfill the municipality's unmet obligation.  This is called a "Builder's Remedy Lawsuit".  Once the developer demonstrates that the municipality, in this case Livingston, has failed to meet its obligation, then Livingston's land use controls are no longer relevant for the site and the decision as to what will ultimately be constructed on the property in question falls to a Judge of the Superior Court.  Because Judges are not generally schooled in the particulars of planning and land use development, it is standard practice in such cases for a "Special Master" to be appointed to assist the Judge in reaching a result.  These are typically individuals throughout the State who are professional planners conversant with the principles involved in the establishment of standards to meet Mount Laurel obligations.  Thus, in the present case, Livingston lost its ability to regulate the development of this site with the outcome to be determined by, in this instance, Judge Carey. 

When we became aware that the TMB developer and Livingston Township were on the verge of settling their litigation based upon the project as suggested by the developer, we directed the Township Attorney to file pleadings in the case to demonstrate that the project was unsuitably massive, out of character with the surrounding uses, and failed to take into consideration various environmental factors which would constrain the development as proposed.  At that time, the project consisted of 100 units including 20 affordable units in two buildings 223 feet in length, 73 feet high, with 50 units in each of the two buildings.  As originally proposed, there was also a 4500 square foot commercial building proposed for the intersection of South Orange Avenue and White Oak Ridge Road. 

As the direct result of Millburn's petition and the reports of its consultants, including a Planning Report from Paul Phillips, the Township Planner, an Environmental Report by James Cosgrove, the Township's Environmental Consultant, and a Traffic Report of Maser Consultants, traffic experts, the settlement was withdrawn and the proceedings continued. 

Millburn Township sought to intervene as a party in the case.  Judge Carey decided that Millburn would be entitled to full participation in the case by way of discovery, the deposition of any and all experts and the presentation of legal briefs but was limited to amicus rather than full party status.  As a practical matter, this means that Livingston and TMB can settle the case without the participation of Millburn.  Millburn Township also sued Livingston Township to challenge the adoption of the Housing Plan Element, a section of the Livingston Township Master Plan. 

With the infirmities of the TMB proposal thus exposed, our attorneys have pressed both TMB and Livingston through the deposition of their expert witnesses and the submittal of additional expert information on behalf of Millburn Township to constrain and reduce the project in substantial ways which are now the subject of the current negotiations which have been referred to at public meetings of the Township Committee.  While some of the area residents in Millburn who would be most adversely and directly affected by the construction of a project on the Millburn/Livingston boundary would undoubtedly prefer that Millburn Township persevere in this litigation, it should also be remembered that we owe an obligation to the public interest to consider alternatives that are presented to us.  Even the most bitter opponents of the TMB project acknowledge that there is no hope that the parcel will remain undeveloped.  We are all engaged in serious efforts to limit what is acknowledged to be an unacceptable infringement upon the quality of life of those most closely affected.  The law of the State of New Jersey is strongly skewed to favor the development of housing for people who would otherwise be unable to locate the same, given market conditions for housing in this State.  Reasonable minds can of course differ as to manner by which the State of New Jersey pursues the development of housing.  But, be that as it may, the State of the law is such that developments including low and moderate income units are not only highly favored but are given extraordinary leeway under the law for their successful accomplishment notwithstanding, as we indicated above, normal planning concepts which would have come into play were this a regular application and case. 

The decision of the Township Committee to enter into the discussions, to which it has been invited, is influenced in no small measure by whether there is a realistic opportunity to achieve through further litigation, with attendant expense, a better result than that which might be achieved through a settlement which substantially reduces the project from that first proposed.  

It is of course, thoroughly desirable in this regard that there be a robust and full public discussion.  Furthermore, we have directed our Township Attorney and Expert Consultants to collaborate with representatives of Livingston Township in an effort to explore in an exhaustive fashion the potential for a realistic outcome.  We use the term "realistic" here because we feel compelled to do so by the principles of law involved in this case which demand a common analysis of feasible alternatives. 

Without going into specific discussion of the elements which have been presented to us for our  consideration in the current negotiations, we want the public to be assured that we have pressed for elements of a Settlement, which would result in the development of the site in a manner which is substantially below the amount of parking originally planned, the number of units to be included for residents with resulting reduction in automotive traffic, substantially reduced height of the project, increased landscape buffering along the municipal boundary and observance of environmental buffering requirements based on DEP Flood Regulations. 

There have been complaints that the Township Committee lacks the political will or fortitude to pursue the litigation or that we, while having taken an aggressive position at the front end of the case, have begun to wilt as the case has moved forward.  Nothing could be further from the truth.  We have been aggressive in the pursuit of our objectives throughout and continue to be.  Again, without going into the specifics of the matters under consideration because it would be inappropriate for us to do so, it suffices to observe that all of the elements currently under discussion between the parties would result in the development of the project which is in every respect less intense than that recommended to the Court in the Report of the Special Master and which is currently on file with Judge Carey. 

In this regard, recent well intended suggestions by area residents as to the appropriate level of density/development at this site are simply not even in the range of an expected outcome based upon the analysis of the Special Master.  The area residents have suggested a density of 25 units.  Based upon factors such as the dearth of available sites in Livingston and the constitutional obligation of Livingston to satisfy the need for low and moderate income housing, the Special Master has recommended 15-18 units per gross acre or 64 to 76 units.  At the Kushner Academy site, 19 units per acre are being utilized.  While we would all dearly like to ascribe to a standard which would yield 25 units, there is simply no reason whatsoever to believe that a Court would ever come to that conclusion based upon the recommendation of the Special Master.  This is principally so, because the number of low and moderate income units which would result from development at that intensity is only approximately five units, a number not likely to be embraced by the Special Master, who has recommended between 16 to 19 low and moderate units at this site. 

These are hard truths with which we have been forced to grapple.  As good stewards of the Township's financial resources we are always obliged to measure the virtues of continuing litigation with attendant expense versus the accomplishment of a reasonable settlement, as long as we are confident that the result is one which is consistent with the law and at or near the outcome of a case if litigated to its finish.  We are trying, as we always do, to balance these various considerations in the public interest and we have always sought in that balance the presentation of the quality of our neighborhoods.  No one wants to see the construction of a residential development at the corner of White Oak Ridge Road and South Orange Avenue adjacent to Millburn Township.  We feel confident however, that we have dealt with the situation directly, aggressively and forcefully to the end that a resolution, either by way of continued litigation, or by way of a potential settlement can be realized which minimizes the gross impact which would have resulted through the approval and construction of the original project.  We believe that this is a thoughtful and responsible approach in which the citizens of our community can concur and look forward to the continuing dialogue on this subject in that light.