Developer of property near bald eagle’s nest files suit over application’s rejection

BY Christopher Lang, Correspondent, @topherlang2, MonroeNow, June 13, 2019

MONROE – Representatives of a development project to build apartments and retail space along Route 33 have filed a lawsuit against the zoning board, township and the mayor over its rejection.

The eight-count complaint was filed with the Superior Court of New Jersey in Middlesex County by the attorney, Thomas F. Carroll, representing CT07 SPII LLC and DT07 SPII LLC, the names of the developers for the Route 33 project.

The developers allege the township violated the Mount Laurel agreement and defamed, in part for the mayor’s comments issued through a township press release prior to the March zoning board meeting, among others.

On March 26, the township zoning board rejected the developer’s modified application to build six buildings for 206 residential units and 43,568 square feet of retail space with 641 parking spaces, a pool, and amenity spaces. The developer also sought to build nine townhouses, though that part was on a different lot.

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The application was amended after the confirmed discovery of a bald eagle’s nest at the 48.29-acre lot at 1099 Route 33 West between Applegarth Road and the border with East Windsor.

State and federal laws prohibit construction within 660 feet of an illegals nest. The federal Migratory Bird Treaty Act and Bald and Golden Eagle Protection Act make it illegal to harm eagles, their nest or eggs.

The original 2015 proposal called for 215 residential units, five buildings and 65,000 square feet of retail.

The suit claimed the zoning board’s March decision was an “arbitrary and capricious action” when it “… denied SP’s request for variances that are fully consistent with the standards set forth under the [Municipal Land Use Law], and said Zoning Board denial should be reversed.”

The developers’ attorney argues that the zoning board did not refute the “expert testimony” from the plaintiffs’ representatives and that the board “erroneously gave too much weight to the ‘NIMBY-type’ opposition expressed by certain Township citizens.”

Regarding Mount Laurel, the suit claims that a 2016 settlement agreement the township reached with the Fair Share Housing Center that reduced Monroe’s affordable housing obligation from more than 2,000 units to 1,133 relied in part relied on the 43 units that SPII LLC would build.

As a result of the 2016 settlement, the suit states “the Township was able to obtain a Judgement of Compliance and Repose from the Court on October 5, 2016, providing the Township with immunity from Mount Laurel obligation until 2025.”

The suit claims that some of the variances requested were to build the 43 affordable housing units.

“The Resolution denying SP’s 2018 Amended Application constitutes a direct violation of the terms of the Settlement Agreement, the HEFSP [Housing Element and Fair Share Plan] and the Judgement of Compliance and Repose, as we as the Township’s obligations of good faith and fair dealing in the discharge of its obligations associated with the implementation of the Settlement Agreement.”

The defamation claim centers around comments Monroe Mayor Gerald Tamburro made approximately a week prior to the hearing on the SPII application.

In a township-issued statement, Tamburro said, according to the suit, “The developer could have easily reduced the amount of housing units to lower the density and create an appropriate buffer to protect the bald eagle … But, instead, the plan calls for building rental apartments, some of which will be on top of reduced retail space right on Route 33. It will be unsightly, unnecessary and not in the best interest for Monroe.”

The developers’ claim that they “went to great lengths” to address the property’s scope in response to bald eagle’s nest and that Tamburro’s statements suggest “SP was acting illegally by ignoring state and federal laws regarding the buffer requirements for the bald eagle’s nest, statements that were false and highly defamatory.”

In response to the suit, Tamburro issued a statement in a township press release this week.

“We will not be bullied by aggressive developers and their lawyers, who are focused on maximizing their profits, going beyond the court ordered settlement, no matter the detriment to the people of Monroe and our environment,” Tamburro said. “I have stated my opposition to this proposed development in my capacity as a concerned Monroe resident and an American who is entitled to free speech. If this developer has a problem with my criticism, that’s his problem.”

When reached by phone on Wednesday, SPII attorney Carroll did not respond for comment. The township administration could not be reached for any additional comment by Thursday.