Borough Moves To Protect Itself From Future Builder’s Remedy Lawsuit

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Published: December 30, 2015 @ 3:00 PM EDT

Resolution 332-15 had the governing body increasing the professional service contract of Jeffrey R. Surenian, in the amount of $10,000 during the December 17th Mayor & Council meeting. This is in addition to $6,000 that was approved by the governing body just two months ago in October through Resolution 279-15. Mr. Surenian’s office was the council for the municipality during the Builder’s Remedy lawsuit brought by Roselle Park VP, LLC – a partnership of AvalonBay Communities and Romerovski property owner Israel Braunstein – in 2008 and 2009.

“We are going to be going before Judge Cassidy in February,” stated Borough Clerk Doreen Cali before the vote, “There is a notice that’s going to appear in the paper soon and we have retained them again or they have additional services to provide a service to the borough to go before Judge Cassidy. That should allow us to extend our date where we will be unable to be sued until 2025 instead of 2018.”

Mayor Carl Hokanson publicly asked the borough clerk to clarify what she meant when she used the word ‘sue’, stating that it had to do with a Builder’s Remedy lawsuit. Mrs. Cali continued, “It will prevent anyone from bringing forth a Builder Remedy’s lawsuit [against] the borough. Currently, it is up until 2018, this will extend it to 2025 if we’re successful. Betsy McKenzie has recommended extending it so that is helping the borough tremendously.”

Without mentioning the parties this December, it was apparent the resolution was a measure taken to protect the borough from not complying with its Coalition On Affordable Housing (COAH) obligations should AvalonBay Communities decide to walk away from the project and not develop on the site. Such mention has been made by previous elected officials as far back as 2011 that the developer did not foresee any plans to move forward with construction. Elizabeth ‘Betsy’ McKenzie was the Special Master appointed to mediate between AvalonBay and the borough during the negotiations more than half a decade ago.

AvalonBay had brought a Builder’s Remedy lawsuit against Roselle Park in 2008 because the municipality adopted a ‘Romerovski Redevelopment Plan’ that required retail space on the ground floor and residential above. The developer only builds residential complexes and then sued under the premise that it could address COAH by providing 38 Affordable Housing units and the municipality had no right to deny development since it had no legal standing due to a lack of Affordable Housing. As part of an agreed upon settlement in 2009 to drop the lawsuit, AvalonBay has until 2018 to begin development or walk away from the project. Doing so without any measure of legal protection would leave the borough in jeopardy of another Builder’ Remedy lawsuit since it would lack, at least, 38 Affordable Housing units.

The effects of the lawsuit have cost taxpayers millions of dollars without any actual development being started as of yet. One million dollars needs to be set aside to meet the rehabilitation component of the agreement. The Department of Public Works (DPW) needs to be moved at a cost – so far – of $3.2 millions in order to have its current space used to have senior housing; another required aspect of COAH that needed to be addressed because of the lawsuit. This amount does not included funds that were spent – between $300,000 and $400,000 – to defend the Builder’s Remedy lawsuit.