Township Takes Steps to Appeal Birchwood Avenue Ruling

As Cranford residents continue to sign opposing the development of Birchwood Avenue and builder's remedy lawsuits in general, officials are taking the necessary steps to appeal Superior Court Judge Lisa F. Chrystal's recent to allow 360 apartment units to be built on a flood-prone section of Birchwood Avenue.

Mayor Daniel Aschenbach said he has contacted local legislators and will continue urging residents to sign petitions and fight the development, claiming that Birchwood Avenue is a flood-prone area and at risk of overdevelopment.

"The Township Committee is 100 percent against this development. We have to show our outrage as a community," Aschenbach said during a meeting earlier this week. "We all have to stay on the same page and go ahead in fighting this."

But the process of appealing the decision may not be easy.

According to Township Attorney Daniel McCarthy. An order has been prepared by the attorneys for Cranford Development Associates. McCarthy said the township's next step will be to submit a competing order that "more accurately reflects the judge's decision."  Normally, he said, once that part of the process is done, the judge's decision would also be reviewed by the Appellate Division of the Superior Court.

"But that's not the case in the context of this litigation," McCarthy said.

Instead, he explained, there has to be a "final judgement." The Township Committee must then introduce and pass an ordinance "that permits the development of this site." He pointed out that this move does not in any way mean that the town is in agreement with the court's ruling.

"We don't have any choice in this regard, because she (Judge Chrystal) has full contempt powers," McCarthy said.

Once the ordinance is approved, the town will go back to court for a "final judgement." After that, the attorneys can continue to move forward with the appeals process.

The entire case is the result of a that was filed by the developers of the Birchwood Avenue property. 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. Such is the case in Cranford.

The S. Hekemian Group of Paramus bought the property in October 2008 and proposed 356 market rate units and 63 units of low- and moderate-income housing. It then filed a suit in New Jersey Superior Court claiming that Cranford is in violation of its constitutional duty to create sufficient opportunity for the construction of low- and moderate-income housing.

More than a year ago, a special master was appointed to study the case and reported to a judge that the project should go forward due to the town's obligation to provide affordable housing. McCarthy said Judge Chrystal "took the recommendations of the special master…Elizabeth McKenzie, almost verbatim." In her decision, the judge requires that 54 of the 360 units built on Birchwood Avenue be affordable housing. Rita Labruto, one of several residents who have been outspoken on the issue, took exception to the the fact that when considering the number of affordable housing units were required, the judge classified Cranford as an urban area, rather than a suburban area.

Township officials and residents have agreed that the Birchwood Avenue property would better serve the community if it were turned into a retention basin, to manage stormwater runoff. Aschenbach said the town has reached out to the Department of Environmental Protection in an effort to have them survey the site and its issues involving flooding.

"There are a lot of conditions here that I don't think were well-understood in terms of environmental conditions," the mayor said.

Township Committee candidate Lisa Adubato Nesi, who along with running mate Andis Kalnins is circulating a petition opposing builder's remedy lawsuits, spoke about the judge's court transcript. She said she was surprised by the fact that the transcript states that, based on the special master's report, the project "could actually be good for the flooding situation."

Residents who live in the neighborhood surrounding the Birchwood Avenue property have repeatedly told officials about the extreme flooding that has occurred there over the years. Water that, at times, reaches waiste-high levels near Casino Avenue and inundates homes in the area are among the concerns. Residents also feel that the development will lead to overcrowding in the local schools as well as traffic problems in the area.

The Birchwood Avenue court decision transcript is available on the township's website, http://cranford.com/township/, where residents can also view and sign the petition opposing the development.