Legal Bills Mounting As Cranford Endures
Birchwood Saga
The Local SourceCheryl 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.
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.