The proposed 360-unit Birchwood Avenue development is one Cranford residents highly oppose because it’s an area of town that’s prone to flooding. And in the three short months since Hurricane Irene devastated the town, the hotly contested project has not only incited more outrage among residents and town officials alike, but it has now gained attention and momentum as a campaign issue with less than a week to go before the Nov. 8 general election.
Candidates running for seats on the Township Committee have made the Birchwood Avenue development a primary focus and are in agreement about at least one thing: they oppose the project and the developer's recent decision to start excavating the land.
Despite repeated attempts, the Paramus-based S. Hekemian group has not returned phone calls in reference to this project or its recent excavation. However, candidates seeking a seat on the Township Committee have confirmed residents’ concerns that the developer was working on the land without the proper permits.
Why Are There Construction Crews On Birchwood Avenue?
Andis Kalnins and Lisa Adubato Nesi, Republican candidates for the Cranford Township Committee, discovered the excavation and lack of permits while on a recent tour of the Birchwood site with Republican Sen. Tom Kean Jr. In response to residents’ frustration that the town was not shutting down the builder, Kalnins and Adubato Nesi contacted the township engineer to see what could be done about the excavation.
Mayor Dan Aschenbach, a Democrat who is seeking re-election to the Township Committee along with his running mate Thomas Hannen Jr., said when it was discovered the S. Hekemian Group had workers excavating the property, the company was ordered to show permits allowing the land disturbance. No permits were shown when the township requested them, however.
"The work continued and the Union County Prosecutor's Office, state DEP and Hazmat were contacted and became involved. A request for injunction to stop the work was then brought before Judge Lisa Chrystal, who did not decide the matter, but required additional conditions."
The judge’s request for more information is being obtained and the process for an injunction “is now taking place,” Aschenbach said. "The township has taken the legal steps required to assert the township's rights. “Despite the nightmare of Irene, the Hekemian Company chose to create fear and distrust by illegally excavating on the property without permits. This was done when many residents are still not back in their homes from Irene.”
During the excavation, officials also said that trash and debris was found when the construction vehicles began digging in the soil at the Birchwood Avenue site. Residents living in the area claim the property was used as a landfill in the 1950s and 60s. The mayor said he plans to ask the Township Committee to consider condemning the Birchwood property, which would allow the town to acquire it.
"This community will not sit back and be taken advantage of, particularly by an arrogant company willing to disregard the flooding we have endured,” Aschenbach continued. “I am outraged by the conduct of the company. I am asking the township to consider condemnation with the opinion that the property is not suitable for development due to the flooding and remediation issues now uncovered by their finding historic debris.”
Douglas Cohen, general counsel for the S. Hekemian Group, could not immediately be reached for comment on the issue.
Finding An Alternative
The mayor said that since the Birchwood property "has lost significant value," the township will propose purchasing the property as part of the state’s “Blue Acres” program. The town could then turn the site into a retention basin, which would help control flooding. The property was originally purchased by the developer in 2008 at a cost of $8 million, according to former Mayor Mark Smith.
The Blue Acres program allows towns to acquire or preserve flood-prone space for use in flood mitigation. Retention basins are one of the ways to help solve flooding issues.
Properties, such as Birchwood Avenue, that have been damaged by flooding or are prone to flood damage, or those that may buffer or protect other lands from such damage, are eligible for acquisition through the state's Blue Acres program. Fawn McGee, the Bureau Chief of State Land Acquisition for the New Jersey
Department of Environmental Protection, explained that there are both state and local Blue Acres funding programs.
If the state purchases the land through Blue Acres, it must be from a "willing seller." However, there is also a program available to local governments such as Cranford that will allow for the acquisition of the property either through purchase or condemnation.
"Local governments can purchase a property either from a willing seller, or if they determine that the best way is to obtain a parcel of land is through condemnation, they can pursue that as well," McGee said.
McGee said that since the NJDEP will be announcing in the next two weeks that the local funding application process is open, Cranford should move quickly to file an application.
"The timing is perfect for the town to put in this application," she said.
McGee added that "time is of the essence" for towns that are hoping to secure Blue Acres grant money. In some cases, the towns can acquire up to 25 percent of the cost of the site they are looking at. The land will first be subject to an evaluation to determine the actual property value. If the value of the Birchwood property decreases, this could mean less funding for the township.
"The pot of money that's available is very competitive," McGee said, adding that most applicants do manage to secure some level of funding.
Smith, who was also on the Planning Board and was involved in negotiations with the S. Hekemian Group when the plan for the property was first proposed, said it could cost "tens of millions of dollars" to create a retention basin on the property.
Taking Action and Gathering Signatures
The Birchwood Avenue property is also at the center of a builder's remedy lawsuit that was filed by the developers. In the simplest terms, a builder’s remedy lawsuit is legal action taken by a property owner in order to try and force a municipality to allow the construction of a large, multi-unit apartment building or complex. In July, Superior Court Judge Lisa F. Chrystal made the decision to allow 360 apartment units to be built on the site. A court order also changed the zoning of the land from office to high-density residential. The township plans to appeal the decision to allow the residential units to be built.
But Kalnins and Adubato Nesi want to do more than just appeal a decision on one property. They want the state legislature to eliminate the court's ability to determine where, and how many affordable housing units can be built in a municipality. Two separate developers have sued Cranford on the premise of helping the town meet their affordable housing obligation, the candidates said. One suit involves the Birchwood property and the other, property at 555 South Ave.
In response to this issue, Kalnins and Adubato Nesi have been going door-to-door collecting signatures on a petition that addresses the effects of builder’s remedy lawsuits on towns like Cranford. The two candidates gathered close to 1,000 signatures on the petition, which they recently presented to Sen. Kean.
In a news release, Adubato Nesi and Kalnins wrote the 2005 Township Committee failed to apply for certification under the Council on Affordable Housing mandate, which allowed the court “to impose an arbitrary, punitive judgment to satisfy COAH requirements.”
Their petition seeks to "end the subjective assignment of numbers of affordable housing units by the state, and give town’s greater protection against builder’s remedies lawsuits." Kalnins and Adubato Nesi are also asking that the law be changed to allow greater consideration of the project’s impact on overall municipal services, schools, and environmental concerns, such as flooding.
“This is clearly not the right place to put a development of this size and density,” Kalnins said. “The schools are already at capacity and there are no roads or infrastructure to support this amount of people and traffic.”
"There was inadequate consideration of the environmental issues of the property in the judgment. The property floods on a regular basis,” Adubato Nesi added.
Shortly after the judge's decision to allow 360 residential units to be built on Birchwood Avenue, Aschenbach also began an online petition to stop the project all together.
Kean, who represents Cranford and is the Senate Minority leader, has been fighting for COAH reform in the state legislature. In the past he has indicated, "virtually everyone agrees that New Jersey's affordable housing system is broken." During a town hall meeting in Union in the days following Hurricane Irene, Gov. Chris Christie made similar comments about COAH.
Residents have also taken matters into their own hands, creating a "Stop Birchwood Development" page on Facebook that has already garnered support from several Facebook users. Residents on the page have expressed their outrage at the work being done on the property "without permits." They have also posted pictures of the site and one user posted a letter, dated Sept. 30, from Helen Owens, the DEP's Supervising Environmental Specialist, that was sent after the resident reached out to the DEP with concerns about the potential development of the Birchwood site.
"Currently, there are no permit applications pending at our Division of Land Use Regulation and the property owner has not engaged our staff in pre-application discussions,” Owens wrote. “Please be assured that at the time an application is received, our staff will conduct a thorough review of the project in accordance with New Jersey's Flood Hazard Control Area Act rules. … Although the division has not yet received a permit application, they are aware of the public interest and strong opposition to this (Birchwood Avenue) project.”