EMERSON, N.J.—A Superior Court judge has 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.
The four-story mixed-use development overhauling Block 419 in the central business district, includes 147 apartments and 15,000 square feet of retail space near Emerson’s train station.
The project has been stalled by competing lawsuits. One was filed by the developer alleging obstruction of the project’s completion by officials and the mayor. A countersuit was filed by the borough alleging the developer breached its contract by not providing $500,000 in construction services after the borough provided developer-requested land at the former ambulance site.
Moreover, the court has ordered a “Mount Laurel implementation monitor” be appointed, under separate order, to help implement the affordable housing settlement. All costs and expenses for the monitor must be paid by Emerson, Padovano wrote.
Borough Attorney John McCann told Pascack Press last week, “As you know, the borough was in agreement to bring in an implementation monitor. We were in disagreement as to who should pay for it.”
He added, “As with most things concerning COAH, [state] courts are unique compared to the rest of the country in that they generally side against the taxpayers.”
McCann said the borough “welcome[s] a fair implementation monitor. Judge [Harry] Carroll has a reputation of being fair. This should improve the pace of the redevelopment.”
As to costs, he said, “It is unknown as of today since the order is brand new. The borough’s litigation counsel [Giblin & Gannaio LLC of Oradell] will be in communication with Judge Carroll this week to iron out those details.”
We reached out to an attorney for Emerson Redevelopers Urban Renewal LLC for comment but did not hear back by press time.
Mayor Danielle DiPaola, a Republican who inherited Democratic predecessor Louis Lamatina’s agreements for the major mixed-use redevelopment project, told the Greater Pascack Valley Chamber of Commerce on Jan. 29, 2020 that the borough had lost … thriving businesses due to redevelopment in the name of affordable housing.”
She said the project was pitched such that it would result in something “similar to a Westwood Avenue” in Westwood.
“That’s not what’s happening,” she said. She described 14,000 square feet of retail space, in addition to the majority of the first floor occupied by “a large gym for the people living in the building only. The project will have a five-story parking garage, and traffic is going to be a very big issue.”
DiPaola also predicted a worsening of traffic on Linwood and Lincoln.
‘The court is concerned…’
The 10-page March 16 order by Superior Court Judge Gregg Padovano cites a “delay in implementation” of the agreed-upon 2019 affordable housing settlement, noting that the downtown redevelopment comprises the bulk of affordable units to be built.
“The court is concerned by the apparent failure of the timely development of affordable housing in the borough and is more concerned that the development was directly approved and ordered by the court,” states the legal rider accompanying the judge’s order.
“The undisputed facts now presented reveal that the borough has failed to provide evidence of final satisfaction of all conditions identified and referenced under the court’s Jan. 25, 2019 order of conditional final judgment of compliance and repose,” Padovano wrote.
He noted it’s been more than two years since the entry of the court’s Jan. 25, 2019 order and that the settlement agreement executed in this matter during November 2017 identified redeveloper’s property, the Block 419 Project, as the parcel within the municipality designated the majority of its third round realistic development potential.
“The borough was obligated under the very specific terms of the settlement agreement to assist in the development of the Block 419 Project to assure the timely development of affordable housing units and timely compliance with the Borough’s Constitutional obligations under the Mount Laurel doctrine,” Padovano wrote.
The court appointed a monitor but declined to assign blame for all the construction delays.
“There clearly has been a delay in implementation of the previously approved plan and timeline provided for under the settlement agreement and subsequent court orders. What is not clear at this time is whether the Borough’s actions, or inactions, are solely responsible for the delay at this stage,” Padovano wrote.
“Accordingly, the court finds that appointment of a special, independent Mount Laurel implementation monitor is appropriate and warranted to address outstanding issues and to determine and advise the court of the basis for any purported delay in compliance,” he said.
Therefore, the portion of the pending motion and cross-motion seeking appointment of a Mount Laurel implementation monitor is granted, subject to terms and scope to be further identified under a separate order of the court,” he said.
“Furthermore, in order to assure continued progress in the development of the Block 419 Project, the court also grants movants’ request to compel review of all applications for permits in connection with the Block 419 Project to be conducted within 28 days of the submission to the Borough,” Padovano said.
Padovano found that DiPaola’s alleged actions “do not rise to the level of obstruction of purposeful interference” in trying to interfere with Block 419’s progress, yet he did rule “the parties are not prohibited from renewing the request for restraints if appropriate at a later time.”
McCann also said that the judge’s final decision on Emerson’s motion alleging breach of contract against the redeveloper for failing to provide $500,000 of construction services in exchange for a deed to its former ambulance site will be decided later in the case.
The redeveloper alleges the borough did not meet a contractual deadline of Dec. 31, 2019 to provide approved ambulance building site plans and therefore does not owe $500,000 in construction services as payment for the property.
The provision requiring that deadline for approved ambulance building plans was approved two years after the original redevelopment plan was signed, local officials said, “and was done in bad faith” according to its civil action filed last year.
Following a presentation from Emerson Redevelopers Urban Renewal, an affiliate of JMF Properties, the Land Use Board, over the objections of dozens of residents, voted Dec. 10, 2018 to grant preliminary and final approval for the project.
The project was championed by former mayor Louis Lamatina, who locked on to an affordable housing justification and aggressively pursued condemnation proceedings backed by threats of eminent domain. The borough’s rationale was tested in court.
DiPaola, sworn in as mayor in January 2019, told residents two months later, with regret, “We cannot stop the project and we’re not looking to engage in any litigation to stop the project.”
She was, however, looking for greater cooperation from the redeveloper in finding new sites for affected tenants.
McCann told Pascack Press at the time that time was of the essence on two fronts: both getting the redeveloper started on a new public safety building as part of the deal and moving forward on the affordable housing planned for the project.
“There is a poison pill here the borough needs to be aware of. The developer has agreed on the emergency services part of the project but if we don’t begin things by the end of the year he’s under no obligation to complete it,” McCann said.
— With some background by John Snyder