MyCentralJersey.com
BERNARDSVILLE – A settlement has been reached in the litigation between the borough Planning Board and the developer of 68 apartments and more than 9,000 square feet of commercial space on Olcott Square.
Details of the settlement have not been disclosed.
The developer, AR at Bernardsville, filed the lawsuit after the Planning Board rejected the proposal by a tie vote last August.
Superior Court Judge William Mennen signed an order on May 22 requiring the Planning Board to hold a public hearing "soon as practicable possible" but no later than Aug. 30 on the settlement reached with the developer.
The Board's next regularly scheduled meeting is June 12.
According to the judge's order, if the settlement proposal is approved by the Planning Board, AR at Bernardsville will dismiss the lawsuit.
If the settlement is not approved, the lawsuit will continue with a trial date to be set.
A case management conference has been scheduled by the judge for July 16.
AR at Bernardsville, part of Advance Realty Investors of Bedminster, filed the suit in Somerset County Superior Court alleging that the denial of the proposal was "arbitrary, capricious and unreasonable."
After seven meetings and more than 20 hours of public hearings, the board split 4-4 in August on the proposal, resulting in its denial.
AR at Bernardsville is under contract to purchase the property at the corner of Route 202 and Mount Airy Road from Palmer Enterprises, the business of former Somerset County Commissioner Peter Palmer, who also served as mayor of Bernardsville.
The project was the result of a redevelopment plan which started in September 2022 when it was designated by the Borough Council as an area in need of redevelopment.
The redevelopment plan was adopted by the Borough Council in May 2023 after the Planning Board determined that it was consistent with Bernardsville's master plan. The borough and AR at Bernardsville entered into a redevelopment agreement in August 2023.
As part of the redevelopment agreement, AR at Bernardsville will pay $1 million into the borough's affordable housing fund in lieu of including any affordable units in the building.
The proposal, seen as a centerpiece for the borough's downtown at its busiest intersection, drew criticism from many borough residents.
The plan called for a four-story building with two levels of parking and approximately 9,230 square feet of commercial space.
The Planning Board hearings on the site plan began in February 2024 and continued through the summer.
But, as the lawsuit alleges, each hearing "represented an opportunity for Board members to conjure new and unique concerns" about the project, even on aspects of the plan that had remained the same from previous meetings.
The suit alleges that Board Vice Chairman Hal Simoff, who eventually voted against the project, "had clearly pre-judged" the plan and his "commentary (during the public hearings) was designed to craft a pretext to deny the application."
The suit also charges that Simoff had expressed a "seemingly intentional misrepresentation" of the redevelopment plan with the allowable height of the building. The suit argues that the plan was identical in the building height and layout as the initial concept in the redevelopment plan.
When the public hearings concluded, about 100 conditions were attached to the proposed approval, many of which "went well beyond" the redevelopment plan, according to the lawsuit.
The lawsuit argues that the resolution adopted by the Planning Board in December formalizing the project's rejection attempted "to repackage various disjointed statements and observations into coherent legal rationales for which there exists zero evidence."
The proposal drew vehement opposition from many borough residents.
“How could anyone who truly cares about this town − its past, present, and future − propose such a project,” said Rosalie Ballantine at one planning board meeting. “For me, it’s a dark day in Bernardsville’s history.”
AR at Bernardsville had argued that the "high quality" project is targeted to young professionals and empty-nesters who longer want to maintain 5,000-square-foot homes. The developer said the project would bring more residents into "the heart of downtown" who would support downtown businesses.
The developer also said that issues involving traffic and driveways on Route 202 and Mount Airy Road, one of the Board's major concerns, would be under the jurisdiction of Somerset County and the state Department of Transportation.
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