EMERSON—A state appellate court has handed Emerson a decisive win in its fight with downtown redeveloper Emerson Redevelopers Urban Renewal (ERUR), rejecting an effort to force the borough to rezone 129 Kinderkamack Road for seven offsite affordable housing units.
In a Sept. 5 decision, Appellate Division judges Greta Gooden Brown and Morris Smith stressed that nothing in Emerson’s housing agreements guaranteed ERUR the right to build at that location. “Nowhere in either the November 2017 settlement agreement or the January 25, 2019 judgment does it require or specify that the seven off-site units from the Block 419 project were to be built at 129 Kinderkamack Road,” they wrote.
The panel added that ERUR had failed to show the borough’s actions violated its housing obligations. “Without such a provision, [the developer] cannot show the borough’s noncompliance to justify granting the requested relief,” the judges wrote. They noted ERUR still had other means of meeting its affordable housing obligations.
Borough Attorney John McCann called the ruling “a complete repudiation” of testimony by former Mayor Louis Lamatina in support of the redeveloper. “He did not vet this redeveloper, and there were no documents indicating this offsite development was to be built,” McCann told Pascack Press. Asked to comment on the borough’s appellate court win, Lamatina said that during his administration it was “agreed and understood” the redeveloper would buy the property and the borough would amend its redevelopment plan to allow the seven units. “The amendment would serve two purposes. First, satisfying the Borough’s Third Round affordable housing obligation, and second, eliminating an eyesore in the center of town.”
He provided no written agreements to that effect and blamed Mayor Danielle DiPaola — who as a councilwoman voted against the Block 419 project and campaigned for mayor against “overdevelopment” — for “throwing every roadblock in the way of the redeveloper” and stalling the project.
Cherry Hill-based Fair Share Housing Center, which was not a party to the case, and soon is celebrating its 50th year with a gala in Hamilton, said the ruling does not relieve Emerson of its long-term obligations.
“Emerson has said ‘no’ to all kinds of ways of providing affordable housing that both nonprofit and for-profit entities are ready and willing to build,” spokesperson Jag Davies asserted. “Fourth Round compliance necessarily involves and implicates Third Round sites, so there will need to be a resolution for this—one way or another. While the Appellate Division rejected the developer’s particular proposal, it did recognize the issue ultimately had to be resolved.”
The appellate ruling comes just days after the Borough Council voted 5-0 on Sept. 2 to revoke ERUR’s designation as redeveloper, citing defaults, unpaid property taxes, and stalled construction on the Emerson Station project.
Officials have already filed notices of default and termination, and said condemnation of the property is now on the table.
McCann said any new developer would be required to reimburse Emerson for legal costs and for the $500,000 former ambulance property deeded to ERUR. He declined to specify the total sum sought.
ERUR’s attorney did not respond to our invitations to comment.