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WORSE THAN IRENE? CRANFORD RESIDENTS WORRY DEVELOPMENT COULD BRING EVEN MORE FLOODING

Casino Avenue/Irene 2011
Casino Avenue/Irene 2011








 Published:  Saturday, August 25, 2012, 11:30 PM
By Ryan Hutchins/The Star-Ledger

CRANFORD—As so many did a year ago, Joe LoGiudice watched as the rain fell and the water rose, turning his property and others near it into one continuous lake. 

“The water kept coming closer and closer to my house,” the Cranford resident recalled one recent afternoon as he stood in his backyard, staring into the swampy woods behind it.  “Had the rain not stopped, it would have come into all these houses.”

Cranford was the Union County town hit hardest by Tropical Storm Irene, which blew through the Garden State Aug. 27 and 28.  Hundreds of homes and business were underwater.  Government buildings flooded.  It was a devastating experience, even for a town nicknamed “Venice.”

LoGiudice is among the lucky members of his community; the water rose to within a stone’s throw of his Wadsworth Terrace house, then it receded.

But the 51-year-old doesn’t feel any sense of relief, nor do his neighbors who survived the storm with little to no damage to their homes.  They’re worried the worst is yet to come and think a high-density housing development—one planned for a lot a block away from LoGiudice’s home—will be the reason.

The project, a 360-unit complex that would be constructed on a 16-acre site in Cranford’s north side, is derided by local officials and residents alike.  They all worry it will make the flooding worse, upsetting a delicate balance between wetlands and dry land.  The developer and its experts say the building won’t cause any new flooding and will actually improve drainage in some areas.  But those assertions have been little comfort to residents and township officials.

The fight to stop the development on Birchwood Avenue—now closer than ever to becoming a reality—has been going on for years, but it was Irene that electrified opponents.  Their fears embody just how bad the flooding was after the storm.

There was flooding in Rahway, Elizabeth, Springfield, Union, Mountainside and other towns.  Communities were bisected by floodwaters.  There was tens of millions of dollars in damage.  One early estimate put together by the county’s Office of Emergency Management figured the damage surpassed $100 million.  The federal government has pledged or paid more than $50 million in grants and loans to residents, business owners and governments in Union County.

Cranford was, without a doubt, left in the worst shape.  Residents canoed through the township’s downtown, flooding stretching for blocks.  The municipal complex and police department were underwater.  Nearly 1,300 residences—or more than 15 percent of the township’s houses—had significant damage, officials said as the waters began to recede.  Some 200 houses had flooding up to the first floor.

Brookside Place School, which had 2 feet of water inside it, was closed for months—displacing students and teachers.  The damage there cost more than $1 million to repair, much of it reimbursed by the federal government.  The first floor of the municipal building is still closed, the damage totaling some $3 million, officials say.

But as bad as it was, they all say the Birchwood development would make it worse.

“I think it’s going to be devastating,” Mayor David Robinson said.  “Absolutely devastating.”

The site, about 16 acres in size, is in a quiet neighborhood thick with trees.  There’s vacant office space on the property, which is next to an assisted-living facility.  Across the street is the township’s recycling center.  And behind the property are woods—very wet woods, some considered wetlands—that stretch back to houses on Wadsworth Terrace, where LoGiudice lives.

After Irene, much of the property was underwater.  So was Birchwood Avenue.  That’s why local officials object to the housing project.

“The bottom line is:  It’s bad environmental practice.  It really is,” said Kevin Campbell, a township commissioner.  “You don’t want to put a 360-unit development in a swamp, near wetlands, near everything else.  It’s insane.”

But there are several acres of dry land there, and that’s where the developer would like to put the four-story residential buildings.  The company, Cranford Development Associates, is a subsidiary of the Paramus-based S. Hekemian Group.  The company successfully sued the township through a “builder’s remedy” case, arguing Cranford has a legal obligation to allow the high-density housing so long as at least 15 percent of the units are sold at affordable rates.

Superior Court Judge Lisa Chrystal ordered the township to change its master plan and zoning ordinance to allow for the development, and she took away the authority of the local planning board—handing it over to a special hearing officer who reports to her.  Site plan hearings have been going on for weeks, held in Superior Court in Elizabeth.

No one from the developer’s office could be reached to discuss the project.  Peter S. Hekemian, the parent company’s vice president for development, did not return two messages left at his office.  The company’s general counsel has been away on vacation.  But the group’s plans are made clear in court filings and through testimony during the ongoing site plan hearings in Elizabeth.

Despite the concerns of locals, they say they will be able to mitigate any issues with flooding and will meet state environmental requirements.  They have not yet received all the required state permits, and the height of Birchwood Avenue will need to be raised to do so, but they believe they will eventually be given the final go-ahead.

To avoid issues with storm water flooding, the project will include a large underground storage system, said Michael Dipple, an engineer hired to work on the project.  It’s a series of concrete vaults called the “storm trap.”

“Flow from the development will first go into the underground system.  It will be held for a period of time, and it will be released at a rate which then complies with” state standards, Dipple testified this month at the site-plan hearing.

That system and other steps the developer plans to take to avoid flooding issues miss a broader point, says Richard Marsden, the township engineer.  The site where the housing would be built is part of a much larger flooding plain—one that stretches across Cranford and into Kenilworth, he said.  It’s shaped like an hourglass, and filling in the ground on Birchwood could create flooding elsewhere, in areas that stay dry now, Marsden said.

“My argument is, by filling it in here, you’re going to restrict it—it’s going to back up,” he said.

It’s that prospect—and the memories of Irene, along with other storms of years past—that have so many people in the community up in arms over the development.  Some formed a group, Concerned Citizens of Cranford, and have hired an attorney to raise objections through the state Department of Environmental Protection.  So many people were interested in attending the site planning hearings that the township had a bus to drive residents to Elizabeth.  Even Gov. Chirs Christie, who lived in Cranford two decades ago, has weighed in.

“I’m concerned about this.  I’m concerned about it from a flooding perspective, in particular.  More building in Cranford, especially in that area, it doesn’t seem to me like it’s pretty wise,” Christie said earlier this year on his weekly radio program, “Ask The Governor,” on New Jersey 101.5.  He later added:  “If this thing is built, it’s going to make things significantly worse.”

That’s Liz Sweeney’s nightmare.  She lives on Wadsworth Terrace, on the opposite side from LoGiudice.  Sweeney, a member of the Concerned Citizens group, never had to worry about the flooding.  She will worry if the development is built, though.

“I fear that the project is going to alter Cranford forever.  I fear that it is going to flood everywhere,” she said.  “I fear I’ll have to move.”

CRANFORD TAKES ANOTHER LOOK AT CHANGING THEIR GOVERNMENT
 
The Local Source
By: Cheryl Hehl - Staff Writer
 
CRANFORD — If the township is going to make a move towards changing its current form of government, residents will have to make their voices heard on the issue or forever hold their peace.
Last week Mayor Tom Hannen said the township will be repealing a 2012 ordinance approved late last year that would have paved the way for a charter commission to investigate changing the current form of government.
Although the ordinance is scheduled to be repealed at the June 11 township committee meeting, Hannen said the issue is far from dead.

“In order to move forward we have to repeal the old ordinance that allowed us to establish a charter commission,” the mayor explained, adding that by doing this he hoped residents would come forward to say how they feel about the issue one way or another. Right now even he is on the fence.
“I’m not sure what to do. This is about Cranford’s future and how residents will be governed, not just about the present,” Hannen said, suggesting whatever the township decides should be based on input from residents.
“I hope repealing the old ordinance brings out residents so we can hear how they feel about this,” he said, pointing out that the governing body needs to know how people really feel about the current form of government and if a change is something they want.
But that is not the only problem facing Hannen. Two minority Republican members on the committee are strongly in favor of a charter study and the mayor said he cannot ignore their concerns.
Last year the Republican majority on the committee introduced the ordinance late in the year, but later the matter was shelved. Support further weakened when the Democrats took over control of the township committee Jan. 1, but Hannen said the timing was just “all off.”
“It was late in the year when it was brought up, right around the holidays when most people are busy. Now we have had the ability to think about it clearly and the timing is better,” the mayor said.
At the time, former mayor David Robinson, Lisa Adubato and Andy Kalnins supported the measure while Democrats Kevin Campbell and Edward O’Malley did not. At a recent meeting Campbell was still against changing the township committee form of government, telling fellow committee members he did not see it as a “cure-all” for the problems facing the township.
“I haven’t heard anyone express any real support for a charter study or for changing our form of government,” he said, adding that only two people actually commented on the issue in the past. O’Malley saw things from a different perspective.
“I don’t see this as a public support issue. I see it as effective government and effective access,” he said, mentioning it was not “effective” to keep bringing up the subject every five or six years.
Hannen is keeping an open mind but did feel bringing aboard an experienced, full-time administrator changed the picture considerably from last year when the township was in a state of flux.
“Having Joe Hartnett has been a blessing. He is on top of everything and has everything under control, which is a big change from last year,” the mayor said mentioning that he believed a lack of long-range planning caused the problems the township experienced in the past.

“We need to plan three years ahead, not one,” Hannen said, explaining the township is a business “and businesses plan ahead more than a year.”

On the other hand, while Adubato admitted the addition of a full time administrator certainly resulted in improvements, she felt there was no harm in asking residents how they felt. Specifically she pointed to how inconsistencies from year-to-year resulted in the township getting mired in situations like Birchwood.Birchwood is a builder’s remedy apartment complex development on Birchwood Avenue that the township and residents living adjacent to the proposed project have been against since its inception. As a result the township incurred well over a half million in legal costs to fight the project, a number that some officials say is more “like a million.”
The question of changing the form of government in Cranford is not a new one. Periodically the issue has surfaced and then gone off the radar again.
In fact, in 2007 when the matter was brought before voters in a referendum, 75 percent were in favor of a change. Records indicated there was unusual turnout when the issue came up on the ballot, considering it was not a federal or gubernatorial election, with 3,611 residents in favor of changing the form of government and 1,984 against.
This all changed the following summer after a nine-member Charter Study Advisory Committee spent months investigating whether a change in government was in order. In August 2008 this committee recommended keeping the current township committee form of government, suggesting the administrator’s role be extended to increase efficiency.
Although the community came out in force to support a change in government, when it came time for the advisory committee to hold a public hearing on the issue, only a handful of residents attended and the township only received six emails on the topic.
Currently the township operates a committee form of government with five members elected at large for three-year terms. Although there is a mayor, the position is not elected at large, but rather decided by the majority members on the committee, as is the deputy mayor position.
There are four forms of government municipalities can choose from under The Faulkner Act, a 1923 state law that permitted towns to choose between four types of government.
The township form, like Cranford, is the oldest form of municipal government in New Jersey.

Following that is the town form with the mayor and councilman selected in partisan, not political, elections.
There also is a city form of government with an elected mayor and council, like Rahway and Linden, and the borough form, which is the most popular form of local government in the state where the mayor is elected to a four-year term.
Springfield is a year into the process of investigating whether to switch to one of the three other forms of government, with a referendum expected to be on the ballot in the November election.
A charter committee appointed in January consisting of five members is currently looking into all options and is expected to render a decision by August. Like Cranford, this is not the first time the issue surfaced.
In Springfield in 1958, a charter committee looked at other forms of municipal government and made recommendations but nothing came of it.
In 1996, the issue again came up and a Springfield Government Study Committee looked into how the township government was organized and the processes it used but again, nothing came of this venture. This past November voters approved a referendum by a 170-vote margin, with the vote tally coming in 2,391 to 2,221 in favor of looking further into a change. Even though political power on the committee switched from Republican to Democrat, the measure did not die in the process. A charter committee was formed to look into the matter and is expected to return with a report by August.
According to a report by the charter group, it will look into several issues, including studying the present form of government by interviewing both present and past governing body members, civic leaders and media representatives. The group also will hold public meetings to inform voters of other forms of government prior to preparing a report with a final decision on the matter.
The charter group said after digesting this information they will decide whether to retain the current form of government, retain it with modifications, suggest changing to one of the three other forms of town government, or petition the legislature for a special charter, which could include amendments to the present town charter.
 

REPORT CLEARS MORIN IN CF CONFLICT OF INTEREST DISPUTE

 By DELL SIMEONE
Specially Written for The Westfield Leader
June 20, 2013

CRANFORD – An independent report commissioned by the Cranford Township Committee has found that there was no conflict of interest in Phil Morin’s representation of Cranford on the Lehigh Acquisition site plan hearings relating to 555 South Avenue or the Birchwood Avenue/ Cranford Development Associates affordable housing litigation. 

The report by Michael Ambrosio, an attorney and professor at Seton Hall Law School, made this opinion on the basis that the law firm of Florio Perucci Steinhardt and Fader (FPSF), which employs Mr. Morin, withdrew its representation after the deed for 555 South Avenue was transferred from Lehigh to Woodmont Proper ties in March, thus removing a potential conflict of interest, as the firm would have been representing both the developer, Woodmont, and the township. 

Mr. Ambrosio also determined Mr. Morin could continue to represent Cranford on the Birchwood/Cranford Development Associates litigation and other unrelated matters.

 Individual homeowners and members of the Concerned Citizens of Cranford have been opposed to the proposed development of 360 apartment units, with 60 affordable units, by a subsidiary of the S. Hekemian Group called the Cranford Development Associates (CDA). 

Mr. Morin told The Westfield Leader that he was “pleased with the professor’s findings that our firm had no conflict with respect to CDA/ Birchwood and the site-plan hearings.” 

“His credentials speak for themselves. He’s acknowledged that our firm acted correctly. It’s exactly what I would expect. We don’t represent clients in every aspect of their work (Woodmont),” Mr. Morin said. 

In a press release issued to this newspaper, Mr. Morin said, “While I was confident that Professor Ambrosio would not find a conflict, it feels great to be vindicated by one of the most well respected ethics professors in the State of New Jersey as to our firm’s representation of Cranford,” Mr. Morin said. 

When asked to comment at the June 5 planning board meeting, Mayor Thomas Hannen, Jr. said he had no statement to make regarding the report. 

Mayor Hannen said when reached this week for comment, “We are moving ahead. We’ve already hired a new attorney for the appeal (on Birchwood) and a new attorney to deal with the NJDEP (New Jersey Department of Environmental Protection.” 

Following his presentation in executive session to the Cranford Township Committee last week, Mr. Ambrosio said it took so long to do the research and review the findings of the Concerned Citizens and information from (FPSF) that the report had been delayed. 

“We want to be careful not to paint with a broad brush,” he said. He also said it would not be appropriate to comment on the findings. “It should be done by the committee.”

 Rita Labrutto of the Concerned Citizens of Cranford said about the report, “I am disappointed that Professor Ambrosio’s report doesn’t offer an opinion. The representation of FPSF on April 3, and April 22, of this year, in court, which is after the March 25 date where the conflict starts. Professor Ambrosio based his report on the facts given to him, not investigation. I wonder if anyone told him about April 3 and April 22?”

 Liz Sweeney, also of the Concerned Citizens of Cranford, commented, “Cranford Township shouldn’t have to spend $5,000 on a report indicating a conflict. Steve Santola, who is an executive vice president and general counsel of Woodmont, was at the 555 South Avenue site-plan hearing last August (2012). I find it hard to believe that no one from Woodmont or FPSF wouldn’t question if there was a potential conflict of interest at that point.” 

In response, Mr. Morin said in a statement to The Leader, “The same citizens who argued unsuccessfully that our firm had a conflict at the Lehigh site plan hearings have concocted an new theory that is equally meritless. The fact is that the Lehigh/555 South Avenue litigation was severed from the case and was finally dismissed with prejudice as a result of the 2010 settlement by the court’s order on March 22, 2013,” Mr. Morin said. “Professor Ambrosio acknowledges that we did not even find out that a Woodmont subsidiary purchased the property until April 12. Our firm presented the court-ordered amendments to the master plan to the planning board on April 3 at which several of the members of the Concerned Citizens group were present and spoke but they raised no objections at that time. Furthermore, the final hearing on April 22 was held and the conflict issues were raised again, including Woodmont’s recent acquisition of the 555 property.  

RESIDENTS IN CRANFORD NOT PLEASED WITH WESTFIELD

By: Cheryl Hehl - Staff Writer
The Local Source
Friday, June 14, 2013

Cranford residents living on Nomahegan Court have taken issue with what some are calling ‘The Great Wall of Westfield,’ as a builder’s remedy lawsuit results in a housing unit being built on the border of town.

CRANFORD — Yet another builder’s remedy lawsuit, previously settled by Westfield and the developer, brought Cranford’s Nomahegan Court residents to an 11th hour hearing before a Superior Court judge Monday.
 
However, their efforts were for naught because the hearing had nothing to do with the location or density of the project, which Cranford residents said amounts to “the Great Wall of Westfield.”

The proposed development of townhomes is located at 206 Springfield Avenue next to residential developments on both sides and a senior assisted living facility, which is on six acres of land.
At the hearing residents learned that Superior Court Judge Frederic Kessler had no say over the project itself but only whether ordinances fairly complied with the state affordable housing plan. His decision is not expected before Tuesday.

The development, a 24-unit townhouse project planned by Sunnyside Senior Housing of Westfield, became the subject of controversy three years ago when it became clear their right to build affordable housing was being impeded by the municipality The builders remedy case came about because Westfield did not have an affordable fair housing plan in place under regulations set forth by the state Council On Affordable Housing. These regulations allowed the developer to bring the builders remedy case against the town.
 
Although Westfield and the developer eventually settled the lawsuit this year by changing ordinances that would allow the development, Cranford residents living on Nomahegan Court, which borders the property to be developed, were not happy with the end result.

At issue was the fact that the 24-units only included four affordable housing units and none involved senior housing.


On May 7, Westfield held a public hearing prior to changing the zoning allowing affordable housing, but residents abutting the parcel of land were not satisfied.

Concerns brought up by the Cranford residents included water run-off, traffic and changing the look of the neighborhood.

At this meeting, Westfield councilman James Foerst tried to assure the concerned residents that the town did have their best interests in mind.

“We wanted to be good neighbors,” he said, pointing out that under the settlement agreement, the developer was limted to 24 units, as opposed to the 60 they originally requested.

Foerst also said at the meeting that the town was requiring the developer to have water drainage on the property and direct the project toward Westfield and not Cranford.
“We were sued. We didn’t want to change the zoning,” another councilman interjected.

Although allowed to express their objections, in the end town attorney Russell Finestein advised those opposing the project to either send their objections in writing to Kessler or voice their concerns at a Superior Court hearing June 10.
 
The purpose of the Superior Court hearing was to give a final legal stamp of approval on the ordinances passed by the Westfield governing body in May. The ordinances, although approved by the governing body, do not go into effect until approved by the court.

Kessler, a Cranford resident, while agreeing to hear comments by objectors Monday, told the 15 or 20 township residents his job was to rule on the fairness of the plan involving affordable housing, not local zoning or planning issues involving the project itself.
 
Despite this, Nomahegan Court residents elaborated on the density of the project, including that the 1.5 acre strip of land was only 95 feet wide and 700 feet long. Their objections centered on the fact the proposed project included three-story townhouses and a ground-level garage.

Because the project is to be built on a hill bordering Cranford, objectors living near the site felt the project was more than an obstruction, it was “the Great Wall of Westfield.”
 
Even if Kessler approves the ordinances required for Westfield’s affordable housing plan, the developer of the project still has to go before the Westfield Planning Board for final approval of the construction plan before ground can be broken.


Legal Conflict In Cranford Proves To Be Unfounded

By: Cheryl Hehl - Staff Writer

The Local Source

CRANFORD — A possible conflict of interest on the part of the attorney representing the township in the Birchwood Development litigation has hung heavily in the air for months, but a report commissioned by the governing body found no such conflict.
Although controversy has surrounded the complex and litigious issue of the Birchwood development project for several years, a report issued on Tuesday, June 11, by Seton Hall Law School professor Michael Ambrosio attempted to clear the air of any possible legal misconceptions brought to the township’s attention in March.

The Township Committee hired Ambrosio, who also teaches legal ethics at Seton Hall, to put to rest accusations that Phil Morin, a former mayor and township attorney, had a conflict of interest when his firm represented Cranford in the Birchwood lawsuit.
The lawsuit, which the township has been embroiled in for several years, involves a proposed development on Birchwood Avenue for 360 apartments, 60 of which will be affordable housing units.

Residents living in the quiet neighborhood of single-family homes adjacent to the 15.8-acre property have continued to fight the project, with the township spending almost $1 million in legal bills waging that battle.
In March, resident Liz Sweeney, a member of the Concerned Citizens of Cranford, told the Township Committee she discovered what appeared to be a conflict of interest on the part of Morin, a partner at the firm of Florio Perrucci Steinhardt & Fader. She claimed Morin, representing the township in the lawsuit to stop the Birchwood development project, had a potential conflict of interest because of the connection his law firm had in opposing legal matters with Cranford.

She pointed out that, because Michael Perrucci was a developer with Woodmont, there was a direct conflict of interest. Woodmont, she added, was directly related to another builder’s remedy lawsuit brought against the township at 555 South Ave. by Lehigh Associates. Given these latest developments, Sweeney, along with others, including former Mayor Mark Smith, felt the township had to look into the matter because of the connection the two had in relation to the Birchwood development.
In the past, Woodmont Properties filed a lawsuit against Lehigh, alleging it had a joint venture in the development of the South Avenue property. Woodmont also noted in this lawsuit that it provided “substantial assistance” in pursuing the builder’s remedy lawsuit against Cranford.

At the time Morin’s firm was representing Cranford in the Birchwood lawsuit, Woodmont Properties was listed as a client on the law firm’s website and Perrucci was a minority partner with Woodmont in two real estate development projects. The projects included a 25 percent interest in a Pennsylvania project and a 12.5 percent interest in a South Amboy development.
When this information surfaced, the Township Committee allocated $5,000 to hire Ambrosio to explore all the facts and provide his opinion on whether there were ethics violations involved.

Ambrosio’s nine-page opinion noted from the start that conflict-of-interest issues are “fact sensitive” and can only be resolved by painstaking analysis of the facts and circumstances surrounding the representation of a client.
He pointed out that, although Morin’s law firm provided 52 hours of representation while his firm was also representing Cranford, following the builder’s remedy lawsuit brought by Lehigh, his firm did not represent all of Woodmont Industries partners and never represented Woodmont’s interests in 555 South Ave. He also found Morin’s firm did not represent Woodmont when it filed action against Lehigh. It actually was represented by Greenbaum Rowe.

Ambrosio said, since Morin’s firm did not represent Woodmont, there was no basis to conclude that Florio Perrucci Steinhardt & Fader “had anymore than a potential conflict of interest arising out of other unrelated matters.” However, the Seton Hall law professor did conclude the firm’s potential conflict became an actual conflict when Woodmont acquired title to the 555 South Ave. property on March 25, 2013.
This conflict, he said, only related to Morin’s firm representing the township in legal matters relating to the property on South Avenue, not the Birchwood Avenue builder’s remedy lawsuit.
Ambrosio also pointed out that Morin’s firm withdrew as counsel on the Lehigh matter after they became aware of the closing of title and the public was advised of this on April 22, during the public portion of a workshop session of the Township Committee. He also cleared up another legal misconception brought up by residents against the Birchwood project, who said Morin should have advised the township of his clients possible conflict.

“A lawyer or law firm is not required to monitor the activities of its clients to ascertain whether those activities relate a conflict of interest that prevents the firm from representing other parties,” Ambrosio said in his report. “However, after a lawyer or law firm acquires actual knowledge that the interest of a former or current client differs from another client, creating an actual conflict, then withdrawal from representation is required.”
Finally, Ambrosio said any potential conflict of interest was resolved by Morin’s firm withdrawing from representation, so the firm could legally represent Cranford in its litigation in the Birchwood matter.

Morin said he was pleased about the report, noting, “While I was confident professor Ambrosio would not find a conflict of interest, it feels good to be vindicated by one of the most well-respected ethics professors in the state of New Jersey.” Nevertheless, the former mayor felt the entire issue could have been avoided.
“The same residents who were unsuccessful in proving our firm had a conflict at the Lehigh site plan hearings have concocted a new theory that is equally meritless,” Morin said, adding the Lehigh 555 South Ave. legal matter was “severed from case and dismissed with prejudice as a result of the 2010 settlement by court order March 22.”

“As a lifelong resident, I am proud to be a part of Cranford’s legal team fighting this project, and I have advised the Township Committee that I will assist our appellate counsel in anyway necessary,” Morin said in a statement to LocalSource on Tuesday.
The township, though, while not commenting publicly on the report, did explain what would happen from this point on.

“The Township Committee has moved on and has hired two other attorneys to handle Birchwood from this point on,” said Mayor Tom Hannen on Monday, June 24. The attorneys, Jeffrey Surenian and Robert Podvey, he said, came highly recommended. He did not, however, have any comment about the fact that Podvey was the attorney used by the Concerned Citizens of Cranford in their fight against Birchwood. But regarding the hiring of the two new attorneys, the mayor explained why the township decided to go this route.
“We lost all motions to reconsider the Birchwood case up until this point, so this will provide a new set of eyes,” Hannen said, adding he believed there was enough reason to challenge the appellate court before the New Jersey Department of Environmental Protection.

Hannen explained that Morin would continue to represent the township in certain Birchwood matters.
“Phil is finishing up on issues that Judge (Lisa) Chrystal said we had to do,” the mayor said, referring to a judgment that came down in the spring, paving the way for the Birchwood project to proceed to the construction phase.

CRANFORD RESIDENTS OBJECT TO WF'S SUNNYSIDE DEVELOPMENT

By LAUREN S. BARR 

Specially Written for The Westfield Leader 

May 9, 2013

WESTFIELD – Approximately three dozen residents came out to Tuesday night’s Westfield Town Council meeting to object to the rezoning of 206 Springfield Avenue, and several other parcels of land to allow for future development of affordable housing.

Public hearing was held before final approval on ordinances effecting Springfield Avenue, along with Central Avenue, New Street, South Elmer Street, and North Avenue. A final vote on an ordinance that would affect zoning on South Avenue was tabled due to possible pending development and environmental issues. 

Sunnyside Senior Housing, LLC, owned by Ray Rodgers, will construct 24 units, four of which will be set aside as affordable housing. According to Councilman Jim Foerst, despite the name of the company, the new units will not be limited to senior citizens. 

In January 2009, Sunnyside filed a lawsuit against the Town of Westfield and the planning board alleging that Sunnyside’s attempts to develop the property was “rebuffed” by the defendants. The suit was considered a “builder’s remedy” lawsuit, as the town did not have an approved fairhousing plan under regulations set forth by the Council On Affordable Housing (COAH). 

The majority of the residents who spoke out against the rezoning and pending development on Springfield Avenue were residents of Cranford, whose homes border the property. Many of the residents cited concerns about water run-off, traffic implications and changing the look of their neighborhood. Several of the residents also said the previous owners, who sold the property in 2004, would not have sold the property to Mr. Rodgers if they had known his intent.

Councilman Foerst said, “We wanted to be good neighbors” stating that under the settlement agreement, the developer was limited to 24 units, as opposed to the 60 they had asked for. He also said they are requiring the developer to have all water drainage on the property and to orient the development toward Westfield and away from Cranford. Councilman Foerst told the residents that the developer “used COAH as a sword to get the town to allow greater density than what would have ordinarily been allowed.” 

“We were sued, we didn’t want to change the zoning,” Councilman Sam Della Fera told the residents. 

Cranford resident Gary Miller, whose home backs up to the property, said that the new development would cause “sunset to be an hour earlier.” He said that due to the property being situated on a hill, with his home at the bottom, the buildings will “look like six-story buildings to me.” 

Cranford resident Steven Conti, who bought his house two months ago, said his back yard would be destroyed by this development. 

Roxanne Rand, also of Cranford, said that the ratables in the Nomahegan Court neighborhood are going to go down and “this developer just gets to walk.” 

Westfield residents Ben and Laura Gomez, who live across the street from the property, said they feel the property should remain a single-family home, and that they heard the condos that will be built will be sold for between $700,000 and $800,000. 

Residents of South Elmer Street and a property owner on Central Avenue also inquired about the zoning changes, and potential development. According to Mr. Foerst, development would be limited to residential only. 

While the ordinances were approved by the council, they will not go into effect until the town has approval from the court. Following court approval, the developer will have to appear before the Westfield Planning Board for final approval of the construction plan before anything can be built. 

Property owners who are affected by these new ordinances need to file a written objection, a form which they can obtain from the town, and will have the chance to be heard before state Superior Court Judge Frederic Kessler on Monday, June 10, at 9 a.m. at the Union County courthouse.

In other business . .   (continued at goleader.com, May 9, pages 1 & 12)

JUDGE RULES CRANFORD COMPLIANT WITH COAH

By DELL SIMEONE
Specially Written for The Westfield Leader

CRANFORD – State Superior Court Judge Lisa M. Chrystal has deemed Cranford Township’s Master Plan compliant with the New Jersey State Council on Affordable Housing (COAH) requirements. The township’s planning board amended the Master Plan on April 3.

In a decision handed down on Monday in Superior Court in Elizabeth, the judge ruled that the township complied with a December 11, 2011 order which Judge Chrystal imposed after the township lost a builder’s remedy lawsuit brought by Cranford Development Associates (CDA).

“The decision will result in an order of repose which will protect Cranford from any challenges relating to Fair Share Housing until December of 2018,” said former Township Attorney Philip Morin, who represented the township at the compliance hearing. Mr. Morin also said that Judge Chrystal asked attorney Stephen Eisdorfer of Hill Wallack LLP of Princeton, which represents the CDA, to prepare an order of final judgment in the case.

Mr. Morin also said the township can now go forward to appeal Judge Chrystal’s previous decision, which ruled in favor of the CDA building350 apartments at 215/235Birchwood Avenue, 54 of which would be affordable housing units.  The township is opposed to the project because of flooding and contamination concerns.

Cranford has now met its first and second round of affordable housing obligations to the state. If Cranford has any third round obligations, Mr. Morin said they cannot be met by new development since the township has no space to develop, but could be met by rehabilitation of existing properties. As a result of this compliance, 24 affordable units will be allocated at the Lehigh Associates project, comprised of 167 units to be built at 555 South Avenue.

BIRCHWOOD AVENUE APRIL '07 FLOOD

HOW WILL RESIDENTS OF THE 360 APARTMENTS AS WELL AS EMERGENCY VEHICLES GET IN AND OUT OF THE PROJECT ON BIRCHWOOD AVENUE?

Planned Development On Birchwood Avenue In Cranford Moves Forward After Judge's Ruling

By Christy Potter, Cranford ChronicleCranford Chronicle
February 07, 2013

The battle over Birchwood took another step forward Tuesday as Judge Lisa Chrystal adopted the recommendations of the hearing officer and set a date for the final hearing on compliance.

Chrystal accepted Special Hearing Officer Douglas Wolfson’s recommendations to approve the site plan and elevation of Birchwood Avenue.

The judge also set April 22 as the date for the final hearing to determine whether Cranford is now in compliance with its affordable housing obligations and has taken all the procedural steps to insure future compliance, according to Philip Morin, who was the township’s attorney until the end of 2012 and is still acting as council on the issue. Morin said the final hearing will also provide a time frame for which the town will be protected from future Mt. Laurel/builder’s remedy litigation.

The site plans, which residents and officials have been fighting for more than a year, call for construction of 360 apartments on the property, including 60 affordable housing units. The plan also calls for a five-story parking garage.

The property is located on a 16-acre tract of land at 215-235 Birchwood Avenue, an area prone to flooding. After Hurricane Irene, the area was submerged in several feet of water, and township committee members have pointed out the safety issues in the area after other bouts of bad weather.

The township has been trying to appeal the judge’s July 2011 decision in a builder’s remedy lawsuit to allow the developer, Cranford Development Associates, to build on the site.

There have been a number of twists and turns along the way, including a township complaint, filed in November 2012, that court-appointed special master Elizabeth McKenzie had shown herself to be biased by declaring herself an “affordable housing advocate.” The judge threw out Cranford’s complaint.

The special master wrote two opinions for the court, first finding that the builder’s remedy was appropriate and then, in December 2010, she issued another report saying although there are some environmental issues at the site, she didn’t find them to be unmanageable.

 

Site Plan Hearings End on Birchwood Development

 By DELL SIMEONE Specially Written for The Westfield Leader

Thursday, August 30, 2012

CRANFORD – Five days of site plan hearings for the proposed 360- unit housing development at 215/ 235 Birchwood Avenue ended last Thursday at the Union County Courthouse in Elizabeth. Lawyer summations and the findings of Judge Douglas K. Wolfson and Special Master Elizabeth McKenzie will be forwarded to Superior Court Judge Lisa F. Chrystal, who has the power to approve or disapprove the site plan, only with complete compliance on the part of Cranford Development Associates (CDA), the developer, with the New Jersey Department of Environmental Protection (DEP). 

The NJDEP still has to see that CDA is in compliance with DEP regulations regarding development within a designated Flood Hazardous Area. 

CDA’s civil engineer, Michael Dipple, of L2A Land Design of Englewood, working for CDA, identified and outlined the flow of rain and storm water to the complex during his testimony last week. The CDA is seeking a permit from the NJDEP to raise a 300-foot portion of Birchwood Avenue a foot above the flood plain. Mr. Dipple said he has planned to accommodate an increase in velocity of water from upstream to downstream in the flood plain by installing an underground detention basin at the site to contain water and release it at intervals. 

Mr. Dipple said the detention basin would be 32 by 460 feet, and that pipes and drains on the site would directly flow to the basin. He was questioned extensively about ground water by Maria Anderson, an attorney and Kenilworth resident, who lives close to the site. She said she was concerned about the amount of storm water, which would go out to the road, and the amount that would go to the stream at the border of the property. 

Mr. Dipple said that the flow would be directed from the other side of Birchwood Avenue. “It would slope from Orange Avenue toward the buildings,” he said. 

Township Attorney Philip Morin questioned Mr. Dipple on his trial testimony during the builder’s remedy lawsuit brought against Cranford by CDA. Judge Wolfson curtailed that line of questioning and also any questioning about permits needed from the NJDEP. 

Cranford Township Fire Chief Leonard Dolan testified that a study done by the Cranford Police Department shows peak traffic hours are 7:45 to 8:45 a.m. and 5 to 6 p.m. in the evening, based on a study of Orange and Birchwood Avenues. Joseph Staigar, Cranford’s traffic expert, testified that a higher trip generation still did not call for a traffic signal at Orange and Birchwood Avenues. He did question the width of the driveway on a portion of the site and whether a fire truck could turn around in case of an emergency. 

Cranford Engineer Richard Marsden identified 40 problems he had with Mr. Dipple’s testimony, including drainage in the parking lot, gate valves on site to regulate the flow of water, the size of pipes, the flood way line, and split flow analysis. He was questioned by Judge Wolfson about pipe enlargement or repair, and how to calculate the cost, which would be divided between the CDA and Cranford Township. “The cost of pipe replacement would be $100 per linear foot,” Mr. Marsden said. 

Judge Wolfson said Cranford would have to adopt an ordinance for “off-track” repairs or improvements needed for development. The judge told Mr. Marsden he would ask him to determine to what degree CDA would be responsible to repair or replace pipes. Other topics that Mr. Marsden questioned are pickup, and dropoff at the site, lighting, wetlands and the flow from upstream. 

CDA’s attorney, Stephen Eisendorfer, questioned Mr. Marsden on his formula for calculations. He then called on Clay Emerson, of Princeton Hydro, who strongly disagreed with Mr. Marsden and called his calculations antiquated. 

Members of Concerned Citizens of Cranford, Liz Sweeney and Rita La Brutto, showed Judge Wolfson and Ms. McKenzie pictures of the Birchwood site flooding during past storms. Ms. La Brutto told the judge she objected to the hearings being held in Elizabeth and not in Cranford. Judge Wolfson replied, “You were here every day.” Ms. La Brutto replied that it was difficult to do so. Ms. Anderson told Judge Wolfson that she did not feel confident that the development would not affect upstream. Cranford residents Ann Steinbach and Laura Tarullo also attended the hearings. Members of the Cranford Township Committee attended the hearings intermittently, including Mayor David Robinson, who had been on vacation during the first week of the proceedings. The hearings, held in Elizabeth, usurped the authority of the Cranford Planning Board, which was not permitted to be involved in the proceedings. They now await the findings of Judge Chrystal, along with sanctions or approvals by the NJDEP.

CRANFORD TOWNSHIP AND CITIZENS REQUEST CHANGE IN PLACE, DATE AND TIME OF SITE PLAN HEARING


CLICK HERE FOR CITIZEN LETTER REQUESTING SITE PLAN HEARING TO BE HELD IN CRANFORD

CLICK HERE FOR CRANFORD TOWNSHIP LETTER TO MR. WOLFSON, SITE HEARING OFFICER, REQUESTING SITE HEARING PLACE & DATE CHANGE, AUGUST 3

CRANFORD TOWNSHIP LETTER TO JUDGE CHRYSTAL REQUESTING SITE HEARING PLACE/DATE CHANGE, AUGUST 3

********JUDGE CHRYSTAL DENIES CHANGE IN DATE/CRANFORD FILES APPEAL, AUGUST 6********

+++++ALL REQUESTS & APPEALS DENIED, HEARING IS TO BE HELD AT THE UNION COUNTY COURTHOUSE ON
AUGUST 8, 9, 21, 22 AND 23 AT 10 AM+++++
CRANFORD SHOULD HAVE SAY ON HOUSING, NOT BE BULLIED BY COURTS

Westfield Leader Editorial
Thursday, August 23, 2012

Cranford residents have faced a lot of adversity since Hurricane Irene caused million of dollars of damage last August. These days, residents are concerned as builders try to ram through high-density housing developments with the assistance of the courts. Residents have been attending site plan hearings the past two weeks at the Union County Courthouse in Elizabeth concerning the proposed 360-unit Birchwood development after a Superior Court judge ruled against the township in its effort to stop the development. Another slap in the face is that the Cranford Planning Board has not been allowed to participate in these hearings. The township is also said to have reached an agreement on the proposed development by Lehigh Acquisitions Corporation at 555 South Avenue East, where the developer wants to build a three-story structure with 163 rental housing units of which 24 would be for affordable housing. We have been told that Woodmont Properties is purchasing 555 South Avenue. Then there is the 127-unit Riverfront development currently under construction on South Avenue across from the Cranford Train Station. The Birchwood and 555 South Avenue developments are both part of builder remedy lawsuits brought by the developers against Cranford. The efforts of the Rahway River Watershed to develop a long-term solution for towns along the Rahway River, such as Cranford, Millburn and Rahway, may be for naught if these housing plans keep getting rammed through by the bullying courts. In our opinion, local elected officials, not the courts, should be making decisions on the future of Cranford.

Legal Bills Mounting As Cranford Endures Birchwood Saga
The Local Source
Cheryl Hehl, Staff Writer
August 22, 2012

CRANFORD — Although the township has been fighting the Birchwood Development for years, in the end taxpayers end up footing the legal bill that grows day by day. However, the township stands strongly behind this effort and does not intend to back down. Regardless of the cost.

According to legal bills dating back to 2008, obtained by LocalSource using the Open Public Records Act, the township has spent $578,989.76 to fight the Birchwood development. And the tab is still running.
The bills include charges from four separate legal firms that either represented the township regarding Birchwood, or continue to handle legal issues involving this proposed development.

Included was charges the township paid to former township attorney Carl Woodward’s firm for costs dating from January 2009 until the present; legal services by Stuart R. Koenig, the attorney hired by the township in connection with the Mt. Laurel litigation from July 2009 to January 2011; charges from January 2012 to present from township attorney Philip Morin’s law firm of Florio, Perrucci, Steinhardt and Fader; and invoices for services rendered by court appointed Special Master Elizabeth C. McKenzie.
The township is currently deeply involved in an ongoing court appointed site plan review with Cranford Development Associates, a subsidiary of the S. Hekemian Group, which began efforts more than five years ago to develop a 16-acre parcel of land on Birchwood Avenue. The township, already fighting another developer who wanted to construct affordable senior housing on a narrow parcel of land on South Avenue adjacent to the railroad, took an immediate stance against the project.

Since then the township has had two builder’s remedy lawsuits brought against them by these developers, including multiple appeals and counter lawsuits requiring the expertise of seasoned environmental and land use attorneys. Expertise of this type, though, is costly. Especially in light of the fact the township was on the losing end of these lawsuits and appeals.
The majority of these legal costs, though, occurred prior to trial when attorneys are doing discovery work on the case. This includes taking depositions from witnesses, researching information about site suitability and how environmental and land use law can be applied to a particular legal case.

For example, when Woodward’s firm, Carella Byrne, Carl Woodward and Brian Fenlon, took on CDA’s builder’s remedy lawsuit, by the time the trial was over the legal bills escalated to $430,193. But, according to Morin, that is what it costs to defend a builder’s remedy case.
“There was intensive discovery involved with that trial and a significant amount of time had to be spent preparing for trial,” the township attorney explained, adding that this particular trial lasted 14 days, which is considered quite long.

Morin should know. He recently spent months preparing for the site plan review hearing now being held in the Elizabeth courthouse.
Although Morin, an experienced land use and environmental attorney who is a partner with the firm of Florio, Perrucci, Steinhardt and Fader, just came aboard as township attorney, his expertise was exactly what was needed. Not to mention that he only charged the township $140 an hour, a significant break for his experience.

Still, since Feb. 7 when Morin’s firm began billing the township for his services, through Aug. 7, the tab already was up to $53,344.52. The majority of that amount, however, was in preparation for the site plan hearing when Morin’s legal bills to the township tallied $14,901.50 for 123.20 hours of work in June and $11,032 for 78.80 hours in July.
Regardless, Morin as well as other former township governing body members, including former mayor Dan Aschenbach who spent 18 years serving on the governing body, stands solidly behind the effort to stop the development project that abuts a flood plain area.

Morin said when the township made the decision to fight the project and CDA subsequently filed the builders remedy lawsuit as a result, “the township made a commitment to fight it and they have stood behind that commitment.”
“When you think about the flooding impact from a safety standpoint along with the level of flooding that occurs along the Casino Brook, the township had no choice but to protect residents living in this area,” Morin said, pointing out that “the governing body is 100 percent committed to fighting this development.”

That commitment, however, resulted in some hefty legal bills, including $15, 783.48 from attorney Stuart R. Koenig who took on “Mt. Laurel litigation” from 2009 through January 2011.
Koenig was brought on to research Cranford’s affordable housing obligation, which specifically had to do with a legal decision involving the town of Mt. Laurel in the 1980s. This decision, among others, established that municipalities, had to provide low and moderate income housing, whether they liked it or not.

Later, the Mt. Laurel doctrine, a controversial judicial interpretation of the New Jersey State constitution, laid out exactly what towns could and could not do when it came to fulfilling their affordable housing obligation. This doctrine required that municipalities, like Cranford, use their zoning powers in an affirmative manner to provide realistic opportunities for the production, or development, of housing for low and moderate income people.

Unfortunately, although the township discussed and even planned multiple times to satisfy their affordable housing obligation, they failed to solidify those plans and follow through. This led to the builders remedy lawsuits and more than a half million in legal costs as a result.


Complicating the issue, because of the complexity of the Mt. Laurel rulings, in 2009 the township realized they needed more than the expertise of a township attorney, who not only had other township issues to handle but private practice obligations to juggle. Shortly after, the township hired Koenig.
Already racking up bills was McKenzie, assigned by the court as a “special master” at $250 an hour to oversee and provide impartiality so the township and CDA could come to a meeting of the minds. Despite this, in 2010 the township became embroiled in a trial which McKenzie, of course, was required to attend and provide input throughout.

From conference calls with the judge hearing the case that came to $375 for an hour and a half conversation, to charging $7,624 to attend a two-day trial and to “review trial notes,” McKenzie’s tab began to mount.

As of the end of May, McKenzie had sent the township $78,940.94 in bills since 2009. It should be noted that this amount reflects Cranford’s portion of the special master’s charges, in addition to other legal charges levied against the township.
CDA and the township were required to divide many of the bills with the township, as ordered by the court. Which means McKenzie, according to the legal bills reviewed, also charged CDA in excess of $70,000 for her services involving this case.

Many of McKenzie’s bills involve conference calls to other attorneys who handled the township’s legal issues involving CDA and the builder’s remedy lawsuits and appeals, while others involved the time to write reports, review correspondence, pick up copies from the printer, as well as attend case management conferences relating to the litigation. Plus, the township still has to contend with bills for the court-appointed site plan review now taking place.
But McKenzie and Morin’s bills are not the only legal bills the township is juggling. Invoices for services involving CDA rendered by the Cranford firm Rogut McCarthy from Oct. 19, 2011 to Jan. 23 of this year tallied $17,227.82.

However, it is impossible to tell what this litigation is about because the majority of information on three bills was redacted because it involved attorney-client privilege. This particular information is exempt from disclosure as a government record under OPRA law. Nevertheless, this firm charged the township $145 an hour for legal services they provided.