Judge lifts injunction against redevelopment
Milltown, builder can resume work on for Ford Ave. project
BY JESSICA SMITH
Staff Writer

Proponents of the Ford Avenue redevelopment project in Milltown were pleased with a court decision Monday that allows the project to move forward despite an ongoing legal challenge.

The decision by state Superior Court Judge James Hurley refused the continuation of an injunction that prohibited Milltown and its chosen developer, Boraie, from taking actions related to the redevelopment of the 22.4-acre site.

Hurley also ruled that the developer's agreement to contribute $1 million to the borough for consolidation of its firehouses and other improvements is permitted under the law.

"While I'm not ready to break open the champagne bottles, I'm very encouraged by the decision of the judge," said Redevelopment Agency Chairman Anthony Zarillo.

In response to the lawsuit filed against the borough by Ford Avenue property owner Lawrence Berger, Hurley in January entered a consent order for a 90-day stay of activities that would move along the redevelopment plan, according to David Himmelman, attorney for the redevelopment agency. Though the 90 days had passed, Zarillo said Berger requested another freeze on the project's activities.

"The court did not see the basis to impose those restraints," Himmelman said.

One of the criteria for imposing the temporary restraint is the likelihood, in the judge's eyes, of the plaintiff's success with his claims, Himmelman said.

Now, Boraie is free to seek approval from the Milltown Planning Board, and the agency can pursue ownership of the property through negotiations or the condemnation process. The plan is to replace the old factory buildings on Ford Avenue with 276 age-restricted housing units along with commercial and open space.

Berger alleged that the developer's $1 million contribution to the borough is illegal, and Zarillo said it appears unlikely that the landowner would make such a contribution if he were to prevail in the courtroom and proceed with his own development plan instead of the borough's.

According to Zarillo, not enough residents are informed about the ongoing litigation with the site's owner, along with possible impacts on the town if the court rules in the landowner's favor.

"I have stated in the past, and I continue to believe, that the vast majority of residents support the agency's plan for redevelopment, which is dramatically different than the plan before the court," Zarillo said in a statement at an April 17 agency meeting. "Should the court uphold the owner's suit, I believe that the will of the majority of the borough's residents would be frustrated."

The lawsuit, filed in November, names the borough, its planning board and redevelopment agency; Boraie Development; and Middlesex County and the county freeholders as defendants.

Berger is alleging that the borough is not in compliance with the New Jersey Constitution or the Fair Housing Act of 1985, because it has failed to provide opportunities for the construction of affordable housing.

The suit also seeks to have the site rezoned to remove restrictions that limit residential development to age-restricted, and to increase the number of residences allowed on the tract. Berger's proposed 550 housing units is nearly double the number in the borough's plan, and translates to about 25 residences per acre, as compared to 15 per acre, Zarillo said.

Due to the higher density if the owner's plan is followed, Zarillo said the agency is assuming the 100-foot buffer around Mill Pond stated in the agreement would be done away with if the owner prevails. The purpose of the buffer would be to prevent contamination from reaching the pond. Zarillo said it is difficult to imagine how double the number of housing units could be constructed there without eliminating the buffer.

"The land area ... can't accommodate it," Zarillo said.

The market-based housing would attract a large number of families, thereby bringing an influx of new students into the school district, and increasing property taxes, according to Zarillo.

"In my opinion, it will blow the doors off Joyce Kilmer School," Zarillo said.

In the agency's plan, approximately 28,000 square feet of commercial development is proposed, but in the court documents, Berger did not mention pursuing commercial development for the site, according to Zarillo.

Berger's lawsuit asserts that the agency, along with Boraie and the town, acted illegally by seeking preliminary and final site plan approvals without having his permission to do so.

The project has been steeped in controversy since the plan's inception in 2001. Residents have voiced concerns regarding environmental impacts, as well as possible tax increases and historic preservation at the site.

"This agency, in developing our redevelopment plan, has been both responsive and responsible to the residents," Zarillo said. "Our decision to redevelop Ford Avenue has been guided by what we believe the public wants."

Among the more vocal critics of the borough's redevelopment plan are Charlie and Carol Jegou, who told the Sentinel in February they oppose both the town's and the land owner's proposals, as they consider both to be "high-density housing."

Jegou said the infrastructure in that area cannot handle the proposals, and will wind up costing taxpayers millions of dollars. He would prefer to see the zoning on Ford Avenue returned to allow only light industrial and commercial uses.

Zarillo said it is important for the town to work together to bring a positive end to the court matter.

"We need to move away from the blame game and the politics of the issue," Zarillo said. "This issue needs to be resolved in a level-headed way, in a non-partisan way. In my opinion, should the governing body fail in its response to the pending litigation, the potential outcome or result could be devastating to the borough."