Planning Board asks Supreme Court to hear land use case

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The Planning Board has asked the state Supreme Court to weigh in on the constitutionality of a state law that let Sharbell convert unbuilt senior citizen units to all-age housing, a change the township had fought because of the impact more students would have on its overcrowded schools.

Planning Board Attorney Jerry Dasti said March 25 he had filed the required legal papers requesting that the state Supreme Court hear the town’s appeal of the unanimous appellate court ruling in the developer’s favor. It’s now up to the high court to decide if it will accept the case.

“We will not know for 30 to 45 days if the court will do so,” Dasti said March 25.

The Planning Board voted unanimously on March 20, after a closed executive session, to authorize Dasti to file the Petition for Certification with the state Supreme Court. The board members made no public comment about their decision.

Tom Troy, senior vice president of Sharbell, said March 26 this latest development in the two-year legal battle was disappointing, but not unexpected.

“This does put us in a position that we are going to have to seek some of the many dollars in legal fees that we have spent on this over the past two years,” Troy said. Asked how much those legal fees were, Troy said the company had spent “well north of $250,000.”

“I don’t know to what degree of reimbursement we would be entitled to of that total, but whatever we have a legitimate basis to recoup, we will ask for,” Troy said.

The still unbuilt Gordon-Simpson project at the center of this legal dispute was approved in 2006 and included 265 residential units and mix of retail and office space on a 439-acre tract of land bordered by Route 130 North and Gordon Road. The original 265 residential units included 150 townhouses that were to be age-restricted to adults age 55 and over.

In 2011, however, Sharbell submitted an application to the Planning Board to convert the 150 senior units to 120 single-family homes under the provisions of a 2009 state law that said such conversions must be allowed by municipalities if 20 percent of the units are set aside as affordable housing for low- and moderate-income families, and if other conditions are met. After months of contentious public hearings, the Planning Board torpedoed Sharbell’s application, citing a provision in law that allowed applications to be rejected if a conversion posed a detriment to the public good.

State Superior Judge Linda Feinberg, however, ruled the phrase “detriment to the public good” meant a project’s potential impact on adjacent property owners, not the financial impact that all local property taxpayers might face from more children and the need to provide more classrooms. An appellate panel agreed with Judge Feinberg, saying the Planning Board’s focus on fiscal impact over land use considerations, had been “palpably unreasonable.”

Mayor Fried said March 25 he hoped the state Supreme Court agrees to hear the case because he thinks the 2009 conversion law is unconstitutional.

“It takes away the public’s right to participate in the planning process for what basically amounts to a major zoning change,” Fried said.

In the days after the Feb. 27 appellate court ruling, Troy and Fried both spoke about the possibility of Robbinsville buying the 40-acre section of the Gordon-Simpson property where the 120 converted units are going to be built, and turning the land into open space. The purchase price was not disclosed, but it reportedly exceeded the $6 million in the municipal open space fund.

“We’re still in dialog mode … and we haven’t taken the acquisition offer off the table,” Troy said on March 26. “It’s my understanding that the township is looking into financing options, but we haven’t received any official response. If that happens within a month or so then fine… but we’re not going to wait forever.”

Troy said Sharbell expects to go before the Planning Board within the next month or so for final subdivision approval on the other components of the Gordon-Simpson tract project that have never been part of the court battle. If final subdivision approvals are granted, that part of the project could break ground later this summer.

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