November 29, 2021

Volume XI, Number 333

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November 29, 2021

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In Unusual Move, Developer Is Awarded Attorneys’ Fees and Costs Over Town’s Settlement Breach

In a win for developers, a New Jersey judge has taken the unusual step of awarding attorneys’ fees and costs for breach of a court-approved settlement over a proposed inclusive residential development.

Somerset County Superior Court Judge Kevin M. Shanahan, P.J.Cv., held that Hillsborough Township violated the settlement when its planning board failed to approve a site plan for 96 units, including 23 affordable-housing units.

Municipalities should not “be permitted to repeatedly violate a Court Order and flout its affordable housing obligations under the Constitution without sanction,” the judge wrote in his June 7 decision.

He ordered Hillsborough to introduce, at its next regularly scheduled Township Committee meeting, a zoning ordinance amendment to make the application by developer Campus Associates LLC fully conforming.

Campus’ lead counsel, Marc Policastro, chair of the Environmental Group at Giordano, Halleran & Ciesla in Red Bank, said: “The decision is a clear signal to municipalities—don’t mess with settlements.”

“To the extent that municipalities are recalcitrant, they are not just going to get a slap on the wrist. Public policy is paramount,” added Policastro, who was assisted by Giordano shareholders Paul Schneider and Matthew Fiorovanti, and associate Linda Lee.

The fees and costs remain to be determined and will cover legal fees and costs on the planning board application and two motions to enforce litigants’ rights. The total will also include fees and costs for professionals such as engineers and architects, Policastro said.

In May 2019, the Township and Campus agreed that the development plan could proceed and would be made conforming through a zoning ordinance amendment. The court approved the agreement in September 2019. However, the zoning ordinance was not adopted, and in November 2019, Campus filed a motion to enforce litigant’s rights to compel the ordinance adoption.

Finding, on December 13, 2019 that the Township had anticipatorily breached the agreement, the court directed the Township to introduce the ordinance in January 2020 and adopt it by February 15, 2020.

The adoption took place in August 2020, and Campus submitted an application for preliminary and final major site plan approval.

The planning board denied the application at its meeting on February 25, 2021, stating, among other reasons, that a 150-foot stream buffer was needed. Campus maintained it complied with a 50-foot buffer required by the Department of Environmental Protection. In addition, the planning board wanted Campus to perform a drainage study on the adequacy of a proposed stormwater runoff pipe.

On March 4, 2021, Campus notified the Township it was in default of the settlement agreement. Campus contended that the Township did not adopt the first ordinance until the court had compelled it to do so and Campus had filed its initial motion for relief to litigants. Campus further asserted that the Township failed to adopt the additional ordinance amendment to make the Campus development fully conforming.

Campus stated it was compelled to file a second motion to enforce litigants’ rights because of the Township’s “continued defiance” of court-approved settlement agreements with it and the Fair Share Housing Center.

Linda M. Lee, Michael P. Castore, and Steven J. Corodemus contributed to this article. 

© 2021 Giordano, Halleran & Ciesla, P.C. All Rights Reserved National Law Review, Volume XI, Number 168
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About this Author

Michael J. Gross, Giordano Law Firm, Environmental Attorney
Shareholder/Managing Partner

Mike, chair of the Environmental Law Practice Area, handles all aspects of New Jersey and federal environmental law, including permitting and litigation, CAFRA, sewage disposal and water supply, wetlands, riparian (tidelands) law, solid waste, flood hazard areas, siting of energy and other industrial facilities, site remediation, Pinelands, Highlands, cultural resources, stormwater, wastewater planning, water and air pollution. He also appears before planning and zoning boards and has handled complex construction litigation matters.

Mike is...

732-741-3900
Marc D. Policastro Attorney GHC Law
Shareholder

Marc, Chair of the Environmental Department, is a transactional, business attorney, who focuses his practice in development, redevelopment, environmental compliance cases, corporate transactional matters, land use, zoning and business counseling. Admitted to practice in New Jersey and New York, he has represented numerous national developers, manufacturers, cogeneration facilities and utilities, automobile dealerships, lenders, borrowers and municipal boards in myriad land use contexts, including commercial and residential development and due diligence matters. He also focuses on complex...

732-741-3900
Paul H. Schneider, Giordano Law Firm, Litigation Attorney
Shareholder

Paul, Chair of the Environmental & Land Use Litigation Practice Area, focuses his practice in environmental, redevelopment, land use, regulatory, real estate and affordable housing law, and litigation. He also handles a wide variety of redevelopment matters as well as corporate and commercial litigation. In addition to handling major litigation before both the state and federal courts and the Office of Administrative Law, he has extensive experience before the New Jersey Supreme Court and the Appellate Division.

Paul represents real estate...

732-741-3900
Steven M. Dalton, Giordano Law Firm, Attorney, Environmental - Land Use, Environmental - Site Remediation, Land Use & Development Law ,Cannabis Law, Real Estate, Renewable Energy, Environmental Law, Land Use Law, Litigation
Shareholder

Steve's primary practice is in Environmental Law. He is able to utilize his background in environmental sciences to anticipate, understand and address the issues that his clients confront. Steve assists business and individual clients in state and federal environmental permitting, regulatory compliance, solid and hazardous waste remediation and redevelopment of contaminated sites, underground storage tank compliance, water and sewer rights and approvals, Tideland rights and approvals, and municipal land use matters.  Steve also assists clients with environmental aspects of real estate...

732-741-3900
David J. Miller Shareholder environmental regulatory, real estate and corporate transactional matters attorney
Shareholder

Dave is an environmental attorney with experience in the private and public sectors who focuses his practice on environmental regulatory, real estate and corporate transactional matters. He counsels clients on site remediation, the Industrial Site Recovery Act (ISRA), Site Remediation Reform Act (SRRA), Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), due diligence, participation in potentially responsible party groups and interaction with the Environmental Protection Agency on Superfund matters.  Dave also advises on the procurement of environmental permits...

732-741-3900
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