Judge Denies Township's Motion In Birchwood case

A Superior Court judge has denied the township's motion for reconsideration in the Birchwood redevelopment lawsuit, despite evidence provided by attorneys showing that the property is in a flood-proned area. The judge's decision will allow the property owner to obtain a soil conservation permit from the municipality.

Superior Court Judge Lisa F. Chrystal issued her ruling late in the afternoon on Jan. 26.

"After a lengthy recitation of the facts and legal arguments advanced by both parties, Judge Chrystal denied the township's motion for reconsideration or rehearing finding, among other things, that the additional information did not rise to the level to meet the standard for requiring reconsideration or rehearing, and that the environmental issues were more appropriately addressed as part of the New Jersey Department of Environmental Protection’s permitting process," Chief Eric Mason said in a press release. Mason is serving as the Iterim Township Administrator.

In her decision, Judge Chrystal also indicated that if the issuance of any future permits requested by the developer is delayed by the town "beyond any statutory or local ordinance deadline," the developer may apply to Special Hearing Master Douglas Wolfson for his consideration as to the reason
for the delay.

"The Special Hearing Master's determinations are subject to appeal to the trial court," Mason said.

Cranford Mayor David Robinson said he was uphappy with the judge's decision. Officials had hoped that the evidence presented to the court regarding the effects of Hurricane Irene would lead her to reconsider her decision in the case.

“We are disappointed by the Judge’s ruling,” Robinson said. “One of the reasons for filing the motion for reconsideration was to have the Court consider the devastating results of Hurricane Irene, which occurred after the Judge’ initial decision in this case. We are in the process of revising the zoning for the property to conform with the court’s Dec. 9, 2011 order and will adopt those changes."

The mayor said that following the court’s "acknowledgement of the zoning changes and the entry of a final order by Judge Chrystal," the township
will be able to file its appeal in the case.

A written transcript of the court’s decision was not immediately made available by the court. Mason said the decision will be posted on the township’s website once received.

"The township was disappointed," Township Attorney Phil Morin said regarding the judge's decision.

Judge Chrystal chose not to issue a decision on the township's motion for reconsideration during the initial hearing on Jan. 20. The township continues to fight a proposal by Cranford Development Associates LLC to build on Birchwood Avenue. The company is a subsidiary of the S. Hekemian Group of Paramus.

During last week's hearing, the judge heard two motions: one from the town and one from the developer. The township's motion for reconsideration in the case was presented as a result of flooding evidence town officials gathered after Hurricane Irene to show the devastation the town experienced as a result of the storm. Mason certified for the court that it will be extremely difficult to evacuate 360 apartments in the event of a flood situation similar to the one that resulted from the recent hurricane.

The latest hearing before the judge stems from incidents that occurred in October, when residents and officials noticed excavating soil at the Birchwood Avenue site. The township requested a stay in order to prevent the developer from working on the property but the court, Morin said, denied the request. At the time, the developer had promised to cease working on the property. Former Township Attorney Daniel McCarthy reported visiting the site frequently and not seeing any additional work performed. It is believed that the property was once used as a landfill.

According to Morin, no permits had been filed by the developer with the Department of Environmental Protection or the township before the work on the property began. Complaints were subsequently issued by the municipality for failure to obtain a soil removal permit with the Soil Conservation District, which regulates any disturbance in an area greater than 5,000 square feet, and permits with the NJ Department of Environmental Protection and the township itself. Although the developer did provide some of the information the township requested, Morin said, they did not provide everything that was required. Morin did not say which documents were left out.

When the township began to investigate whether or not soil had actually been removed illegally from the Birchwood site, Morin said, they found no "hard evidence" to prove it. Residents who live in homes adjacent to the Birchwood site, however, have agreed to submit signed letters stating that they witnessed the excavation. When a permit was not immediately issued, the developer filed a motion asking the court to force the township to grant permission for the work to continue.

A soil removal permit was issued on Jan. 11, when the town could not present any evidence to prove the developer had done anything illegal. The developer did not withdraw the motion, however. Instead, Hekemian asked that since the town took so long to approve the permit, a special master be assigned to take jurisdiction over permits being ordered in Cranford.