Business & Finance

Lawsuit Filed Against Livingston Planning Board, TMB Partners in Approval of South Orange Avenue Development; Hall Named Litigator

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LIVINGSTON, NJ—A Short Hills-based organization, the Livingston Short Hills Coalition, last Thursday filed a lawsuit in Essex County Superior Court seeking to reverse the Livingston Planning Board’s approval on June 19 of a housing complex proposed by TMB Partners, a New Jersey limited liability company that lists its office address as Hollywood, Fla.

The site of the proposed complex straddles the Livingston-Millburn border line on South Orange Avenue.

According to the suit, the coalition is a limited liability company whose purpose “is to promote safe and appropriate land use development within Essex County as well as promote activities that are consistent with environmental preservation and conservation.”

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TMB seeks to construct 62 multi-family homes on the former Tutor Time site at 650 South Orange Avenue, near White Oak Ridge Road. It proposes to set aside 12 of the units for rental to low-and-moderate-income families with the remainder going for market rates.

The Township of Livingston fought the development, contending it was not appropriate for the site, but TMB brought suit against Livingston in Superior Court under the New Jersey Council on Affordable Housing guidelines. In August 2010, the township council agreed to a settlement of that suit. That settlement eventually landed TMB before the planning board for approval and that approval was granted this June.

In addition to the housing units, the proposed complex would include a swimming pool, two levels of underground parking and common areas that are solely for the use of the residents of the market rate units.

According to the suit, the affordable units would have “an exterior parking lot separate from the underground parking reserved for the market rate building.”

In its litigation papers the coalition contends that the “economic segregation” of the amenities in the complex from the low-and-moderate-income tenants is “inconsistent with the settlement agreements and COAH requirements.”

The coalition also contends the stormwater management plan for the site approved by the planning board does not meet state requirements.

It cites planning board testimony by stormwater management expert, James Cosgrove, that the site’s system did not meet state requirements because it would fail.

This failure, according to the suit, would occur because the TMB plans calls for stormwater discharge into a vegetated area and this would cause “severe effects of erosion caused by the steep slope of the contours of the site.”

The coalition suit also notes, citing the planning board’s approval resolution, that the Township of Millburn provided wastewater sewage service to the site under an agreement with Livingston expressly precluding service for the apartment houses.

In addition, according to the litigation papers, Millburn had not agreed to accept the wastewater from the site if developed at the time the planning board approved the TMB application.

The suit also notes that TMB has filed suit against Millburn to compel that township to provide the sewage service.

Under state law, according to the coalition, an amendment to the wastewater management plan for the site would have to be adopted so that wastewater could be treated as proposed in TMB’s application.

This amendment, according to the suit, requires “numerous governmental approvals, including approval from the New Jersey Department of Environmental Protection. These approvals could take several years to obtain and there is no guarantee that they are obtainable at all.”

The litigation papers also criticize testimony before the Livingston Planning Board that sewage service by Millburn would be much more practical for the site than service by Livingston because of infiltration and inflow problems in the Livingston system.

According to the coalition, these problems were exaggerated because “these problems have already been budgeted for correction and the record does not support the current observation that there were infiltration and inflow problems on the side of the Township of Livingston where this project is proposed.”

The suit also contends TMB’s proposal to have the trash enclosure placed in the front yard of the affordable building, thus requiring garbage trucks to pick up trash from dumpsters located on South Orange Avenue would create an unsafe traffic condition and violate Essex County rules and regulations.

Calling the planning board approval “arbitrary and capricious,” the suit claims the approval is not supported by the record, is inconsistent with municipal land use law, inconsistent with the settlement agreement between the township and TMB, and inconsistent with COAH rules and regulations and state environmental law.

The coalition seeks to have the June 19 approval resolution declared arbitrary, capricious and unreasonable and to have the resolution reversed.

It also seeks award of its “reasonable attorneys’ fees and costs and such other relief as deemed just and equitable by the court.”

The Livingston Planning Board, at its meeting on Tuesday evening, approved the appointment of Gary Hall, who had served as the township’s counsel on COAH matters, as litigation counsel for the board in connection with the lawsuit against the board and TMB.

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