EMERSON, N.J.—The borough’s redeveloper partner has filed a federal suit against Emerson over what it says is local interference with its contractual rights, bad-faith construction delays, and racial discrimination by local officials in effectively preventing the ordered fulfillment of affordable housing.
The developer, Emerson Redevelopers Urban Renewal, charges Emerson with improper motives and obstruction and “unconstitutional interference with their construction plans.”
The move comes weeks after a Superior Court judge set timetables for Emerson to follow in reviewing redeveloper applications to help expedite the Emerson Station project and construct the 29 affordable housing units the court approved more than two years ago.
In addition, the judge ruled that Emerson should pay the redeveloper’s and Fair Share Housing Center’s legal fees and costs associated with filing a motion and cross-motion in the case.
[See “‘Expedite Emerson Station’ — Judge demands action on affordable housing,” March 29.]
The reason [Emerson] treated [the redeveloper] differently than these similarly situated redevelopers is because [Emerson] sought to obstruct the diverse and inclusive housing mandated by Mount Laurel, due to racial animus,” alleges the suit.
It adds, “[Emerson’s] racially discriminatory obstruction of … redevelopment constitutes violations of the Equal Protection Clause” of the Fourteenth Amendment, which was enacted shortly after the Civil War to combat discrimination and ensure due process.
Emerson Redevelopers Urban Renewal LLC is an affiliate of JMF Properties, with whom the borough locked in the pending Emerson Station mixed-use project at Block 419.
That transpired on the cusp of a new administration, which had campaigned against its scale and the process by which it came together, including the impact on longstanding tenants. Critics also said they did not get what they felt were satisfactory answers on certain land use, design, and environmental questions.
The borough has until April 22 to respond to the complaint.
‘Zero evidence to support this’
Borough Attorney John McCann told Pascack Press that the lawsuit is without basis and offers no facts or support to back up its claims. “There’s absolutely zero evidence cited to support this.”
The previous administration saw the Emerson Station development as a means to satisfy parts of its affordable housing obligations, and these were approved in 2019 by the Superior Court, McCann said.
McCann said the borough would file a motion to dismiss the lawsuit, “which does not have one scintilla of evidence; it’s all just allegations.”
McCann said on April 13, “If they really believed this was an attempt to keep minorities out, they would have made this charge initially. Making this charge of racism when the result is to benefit them economically calls into question the veracity of this allegation.”
He challenged the developer to “build what you said you were going to build. We are suing you for breach of contract. Keep your commitments. We have been saying we want you to build what you said you would build”
The developer agreed to build a four-story, 147-unit, mixed-use retail/residential development on Kinderkamack Road near the train station, including 15,000 square feet of ground-level retail space.
In addition, the developer said it would provide 22 on-site affordable units and seven elsewhere in town, a major part of the borough’s approved affordable housing plan.
The amended federal lawsuit was filed March 30 by Emerson Redevelopers Urban Renewal in U.S. District Court, following dismissal of its previous lawsuit by Judge Madeline Cox Arleo in February.
Arleo tossed out the redeveloper’s lawsuit because it did not specifically allege improper financial gain or racial bias but only that Mayor Danielle DiPaola “opposes the project and redevelopment in general.”
The lawsuit notes that since 2019, the borough has put up “frivolous roadblocks” including delays in issuing needed permits that stopped the developer from construction.
The lawsuit also claims that the borough’s delays and obstructions were “to prevent racially-diverse minorities from moving into Emerson, which defendants connect to Mount Laurel low-income housing.”
McCann charged that the redeveloper is making false claims in efforts to further delay construction, in hopes that a judge may rule for discovery to look into their allegations. He also charged the developer was delaying in hopes of reducing the retail space originally agreed to to a fraction of what was originally proposed, hoping to construct more residential units.
Two sticking points also holding up construction, said McCann, include the redeveloper’s refusal to sign a “developer’s agreement” to hold them to a schedule and the redeveloper’s failure to reimburse the borough $500,000 in construction services in return for the ambulance property deeded to them in 2019.
McCann said the developer offered $250,000 to the borough about a year ago in return for the ambulance property but the borough declined, holding out for the $500,000 in construction services initially agreed to.
Over the past 14 months, the borough and Emerson Redevelopers Urban Renewal have filed lawsuits against each other in Superior Court. The redeveloper charged Emerson with trying “to interfere, impede and ultimately destroy” its ability to finish the project.
Emerson charged the redeveloper with breach of contract for its failure to pay $500,000 in construction services owed from the sale of its former ambulance property.
The developer alleges the borough did not meet its December 2019 deadline to provide approved designs and site plans for the new ambulance building and therefore was in default of its own agreement, thus negating its $500,000 obligation.
In a mid-February Pascack Press article, McCann called the redeveloper “incompetent” due to its many missed deadlines and lack of a construction timetable.
Recently, Superior Court Judge Gregg Padovano ordered Emerson to expedite reviews and approvals for Emerson Station in hopes of getting the 29 affordable units promised built as soon as possible.
The judge noted it was more than two years since the court’s Jan. 25, 2019 approval of Emerson’s affordable housing settlement agreement and no affordable units were yet built.
Moreover, Padovano ordered a “Mount Laurel implementation monitor” be appointed to help bring to life the terms of the affordable housing settlement.
McCann noted the borough was long in favor of a monitor and hoped that this would spur construction activity at a downtown site now strewn with the rubble of former productive businesses.