The developer AvalonBay is suing the town of Princeton, Princeton Council, Mayor Liz Lempert, and two municipal staff members over the developer’s agreement for the 280-unit rental complex planned for the former Princeton hospital site. Council’s decision to require additional environmental testing is the focus of the suit, which was filed last week in Superior Court.
“The Mayor and Council’s decision was arbitrary, capricious, unreasonable, and should be quickly reversed by the Court,” the suit reads, ”These environmental testing requirements are the product of the imagination of Princeton’s new environmental consultant, [Ira] Whitman, who was retained by the mayor and Council at the end of January 2014 С five months after AvalonBay obtained its site plan approval from the Princeton Planning Board.”
Council voted unanimously to approve the developer’s agreement last month, but with more testing than originally proposed and more than what is required by the State of New Jersey. Mr. Whitman, who was hired after citizens repeatedly expressed concerns over the discovery of a medical waste incinerator once in operation at the site, among other things, recommended more soil testing and sampling of concrete the company plans to crush and re-use.
“It’s disappointing,” Mayor Lempert said Monday when asked about the lawsuit. “We were certainly hoping AvalonBay would recognize we were acting in good faith to try and protect the community and the future residents of the site. I would have liked to have worked this out outside the courtroom.”
Ms. Lempert said that Mr. Whitman was hired to advise the Council on matters beyond their own expertise. “We hired a top environmental consultant and we’re following his recommendations,” she said. “If he is recommending certain things, it’s hard for us, as lay people, to say we don’t need to do them. We feel like we need to go with the recommendations of an expert. People’s safety is in question.”
Bob Bruschi, the town’s administrator, said the critical issue is going to be whether the town is allowed to ask for additional testing under the municipal land use law, adding that the vote to require extra testing falls into “the right thing to do category.”
Municipal attorney Trishka W. Cecil, who said Tuesday she believes AvalonBay attorney Robert Kasuba has requested a case management conference with the judge assigned to the case, echoed Mr. Bruschi’s comment.
“The question is whether the town had the legal authority to request this testing. Or, is that pre-empted by state law? That is AvalonBay’s primary claim, that we exceeded our authority,” she said. “I think it makes sense to address that question first, because if the judge rules in AvalonBay’s favor on that question, then we’re done. If she rules in our favor, it’s different. It makes a lot of sense to ask a judge to address that question first and then get to the rest if we need to.”
AvalonBay has been doing preliminary site work, removing underground storage tanks, doors, lighting, and additional items that are permitted before the company agrees to sign the developer’s agreement. Asbestos remediation has also been taking place (see accompanying story).