Developer wins court case, but offers to sell town the land for open space

The Gordon-Simpson tract is located on Gordon Road near Route 130 North.

The Gordon-Simpson tract is located on Gordon Road near Route 130 North.

An appellate court has upheld Sharbell’s right to convert 150 unbuilt senior citizen housing units into 120 three-bedroom homes for families of any age, but the town is not giving up its efforts to stop the project it says will cause an influx of schoolchildren and higher school taxes.

Mayor Dave Fried said March 4 the town would “absolutely appeal” the case to the state Supreme Court, but acknowledged there’s no guarantee the high court will agree to hear the case. In the meantime, he said, he’s also negotiating with Sharbell to possibly buy only the lots on Sharbell’s  Gordon Road property that were involved in the lawsuit in order to turn that land into open space.

The 439-acre Gordon-Simpson project, as it was originally approved in 2006, had 265 residential units and mix of retail and office space. In addition to the 150 units for people age 55 and over, Sharbell also has approval for 14 single-family homes, 16 townhomes, 24 market-rate condos, 60 Project Freedom units for people with disabilities and a 70-acre farmette. The two-year court battle only pertained to the age-restricted units the developer is converting to all-age housing.

Tom Troy, Sharbell’s senior vice president, declined to say what the asking price is for the converted lots totaling “40 acres or so” that were the subject of the lawsuit. Fried, who also wouldn’t reveal the specifics of the Sharbell offer, said the town’s appraisal and Sharbell’s price “are not far apart,” but the purchase price exceeds the $6 million now in the municipal open space fund.

“I’m reaching out to the county and to the state to see if they would be willing to participate” in preserving the land, Fried said. If state and county funds are available, the township might be able to “cobble together enough money to do it,” Fried said.

Troy said Sharbell wants to work with the township, but added the offer is not on the table indefinitely.

“The town asked if we would be willing to sell part of the lots to them and we said we would consider it if it were for the right price and within a timeframe that is acceptable to us,” Troy said March 1, adding that the land is only for sale to the township, not another developer.

Troy said about 130 acres, including uplands and wetlands, were always going to be dedicated as open space to the township as part of the Gordon-Simpson project. If a deal is reached for the lots involved in the conversion, it would add about 40 acres more to that total.

The court battle began in 2011, when the Planning Board rejected Sharbell’s request to convert the 150 senior units to all-age housing.  Sharbell then filed a lawsuit to overturn the Planning Board’s decision on the grounds that a 2009 state law permits developers to convert previously approved unbuilt senior housing units if 20 percent are reserved for affordable housing.

State Superior Court Judge Linda Feinberg ruled in the developer’s favor 15 months ago, prompting the township to file an appeal. On Feb. 27 a three-judge appellate panel upheld Judge Feinberg’s decision, calling the Planning Board’s 2011 decision “palpably unreasonable” because it focused on the financial impact to local property taxpayers, rather than the law.

“I can’t say that I’m surprised,” Troy said after the ruling. “I’m glad it’s done.”

The mayor, however, has vowed to fight on, contending the state law Sharbell used to convert the senior units to all-age housing is unconstitutional because it takes away the right of municipalities to making planning decisions and the public’s right to participate in those decisions.

“This all can be blamed on the Legislature and this terrible conversion law passed in the middle of night without public comment,” Fried said in a statement released after the ruling. “This is a ridiculous law that was passed to help the developers, and we will be looking to the Supreme Court to hear this matter based on its constitutionality.”

In the meantime, Troy said Sharbell expects to go before the Planning Board for final subdivision approval next month for the commercial and residential components of the Gordon-Simpson project near Route 130 North and Gordon Road that weren’t part of the litigation. Construction should start sometime this summer, he said.

Sharbell will also start preparing its application for final approvals for the converted residential units in case a preservation deal with the township cannot be reached, Troy said. The state law allows senior housing to be converted to all-age housing if 20 percent of the units are reserved for affordable housing, which means 120 of the 150 planned senior units at Gordon-Simpson will become market-rate, three-bedroom detached homes and 30 condo units will be set aside as affordable housing for low- and moderate-income families.

The children these 120 single-family homes will bring were not factored into the school district’s enrollment projections when it asked voters to approve an $18.9 million referendum construction referendum in December that will add 29 classrooms to the elementary and middle schools by September 2014. School taxes will increase $192 a year for the average assessed home in order to pay for the construction.

Schools Superintendent Steve Mayer said the district is already facing an enrollment increase of about 300 new students in the next few years from approved housing developments now in the pipeline, and the court decision allowing the conversion of the Gordon-Simpson senior housing units will add more schoolchildren on top of that. Mayer welcomed the news that the township was considering buying some of the Gordon-Simpson lots for preservation.

“I am grateful that the township’s leadership is concerned about the toll of rising school enrollment,” Mayer said.

 

 


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