BRIDGEWATER, NJ - Advance Realty has responded to claims that the company owes back payments into the Bridgewater Township escrow account and more concerning the Center of Excellence with documents submitted to the court about the state of the case against the Bridgewater Township Planning Board.
The documents also speak to the planning board lawyer’s opposition to the suit as a whole.
“Advance’s legal counsel has filed reply papers in the Superior Court addressing the planning board’s lawyer’s opposition, and those are public records,” the company said in a statement. “We also have been in communication with Mayor (Matthew) Moench directly addressing his recent letter and social media postings. Beyond that, consistent with its prior statements, Advance will await the Superior Court’s directions and decisions.”
The application for the project, which was approved by the planning board Dec. 10, was expected to be on the agenda for memorialization of the resolution of approval Jan. 28, according to the suit filed with the Superior Court of New Jersey, Somerset County, but was removed from the agenda at the last minute.
According to the suit filed by the applicant Jan. 31, the applicant was informed early in the day Jan. 28 that the vote for memorializing the resolution would be adjourned, as the new attorney for the planning board, Mark Peck, was still reviewing the transcripts for the hearings. The planning board did not consider the memorialization of the resolution on Jan. 28, and Peck advised the applicant the following day that it was expected to be on the agenda Feb. 25.
State statute, the suit says, requires the memorialization of the resolution to be done within 45 days of the meeting when the approval was granted, but, as of now, the planning board has not done so.
In the suit, the applicant is requesting that the court declare the planning board in violation of that statute. In addition, the applicant is looking for the planning board to consider a letter dated Jan. 24 that objects to certain elements of the memorializing resolution, and to adopt the memorializing resolution within seven days of the court's decision.
A statement to the court from the Bridgewater Township Planning Board’s attorney indicates that the case should be considered moot because the plan is to memorialize the resolution on Feb. 25 after Peck has had a chance to review all the documents following his appointment as the board attorney in mid January. Thus, according to the court documents, the act of memorializing the resolution then would make the court case unnecessary.
“As such, the delay in considering and adopting the memorializing resolution was not done in bad faith or with ill intentions, but to allow the new board attorney the time to review the matter and ensure an accurate memorializing resolution, to the benefit of both plaintiff and the board,” Peck said in a Feb. 10 statement to the court.
In a document filed with the courts Feb. 12, Kevin Coakley, attorney for the applicant, replied to opposition to the lawsuit.
Coakley said in the filing that the planning board is not allowed to make an extension on the 45-day time period for memorializing the resolution, which the planning board did by moving the approval to Feb. 25.
“The board’s decision to allow the 45-day statutory time period to expire before its new attorney even requested more time, coupled with the board’s newly created escrow argument in its opposition brief, as well as other recent statements concerning the township’s intentions regarding its legal obligations, it is clear that a dispute remains between the parties such that the requested inductive relief is required,” the filing said.
In addition to the planning board’s objections to the case on the basis of Peck’s appointment, Moench sent a letter to Advance Realty requesting payment of more than $26,000 in escrow fees owed from the application process.
In a court filing from Advance Realty, Kimberly Callas, senior project administrator for the company, certified that the applicant has paid over $500,000 in escrow fees to the township to reimburse for professionals and consultants in connection with the Center of Excellence project.
She said in the filing that she received a message from Jodi Schneider, of the Bridgewater Township Finance Department, on Feb. 4 asking for the escrow account to be replenished, and she said she was authorized to process that replenishment, in the amount of $40,000.
In addition, the filing said, the planning board has suggested it cannot take further action because of the outstanding escrow payments.
“Prior to receiving the board’s opposition, the applicant never received notice that the planning board would suspend its action on the application until the replenishment was fulfilled,” the documents state. “Thus, the board is not authorized to suspend action on the memorializing resolution based upon the escrow when it only requested replenishment days ago.”
Of final concern for Advance Realty, according to the documents, is a series of FAQs posted to the township website, one of which says that although new members of the planning board cannot vote on the memorialization of the resolution, they can still provide input, and needed additional time to review.
But, the applicant said in the court filing, no additional evidence can be presented to the board once a decision is made, so a newly appointed board member is not allowed to participate in the decision-making process.
“Therefore, the new board members are disqualified, they should not confer with the new board attorney about the resolution and they may not participate in the consideration of, or otherwise provide input on, the text of the memorializing resolution,” the statement said.
Advance Realty said in its statement that it would like to request the court also instruct the planing board that only eligible members who voted in favor of the application can discuss the resolution, as per state statute.
The hearing on the case is scheduled for Feb. 28.