July 2, 2014

AvalonBay Opposes Hiring Environmental Lawyer, No Motion Filed Yet

Last week, the attorney for AvalonBay Communities issued a statement calling Princeton’s hiring of environmental lawyer Neil Yoskin a conflict of interest. Mr. Yoskin, who chairs the environmental practice group of the firm Sokol, Behot, & Fiorenzo, was retained as co-counsel in the recent litigation filed by the developer against the town.

But as of early this week, AvalonBay, which opposes Princeton’s requirement of additional environmental testing at the former Princeton Hospital site, had yet to file a motion. “We’re still evaluating our options,” attorney Robert A. Kasuba wrote in an email on Monday afternoon.

AvalonBay is contracted to build a 280-unit rental housing complex on Witherspoon Street, where the old hospital building still stands. The developer filed a suit objecting to the extra soil testing that the town has made a condition of a developer’s agreement. While preparations for demolition have been underway on the interior of the building, AvalonBay cannot knock it down and start construction until the agreement is accepted.

Mr. Kasuba asserted in his statement that it was “truly perplexing” that Mr. Yoskin was hired only four days before opposition papers were due. “The late retention of Mr. Yoskin is an obvious attempt to delay the litigation, and we expect that the Court will see through this ploy,” he said.

He added, “Of real concern is Mr. Yoskin’s apparent conflict of interest in representing Princeton adverse to AvalonBay. Mr. Yoskin has made a career of representing developers on environmental matters. We are curious to learn of the number of instances where he advised developers to test for environmental contamination where there was no DEP regulation requiring a developer to do so and no evidence of a discharge as AvalonBay is being requested to do in this matter.”

Mr. Kasuba also said Mr. Yoskin has periodically discussed environmental matters with AvalonBay senior vice president Ron Ladell, most recently at a builders convention last March.

“If Ron Ladell said we had a meeting, I don’t doubt that. But I don’t recall it,” Mr. Yoskin said Tuesday. “But at most it would have been a casual conversation.”

AvalonBay is suing the town, Princeton Council, Mayor Liz Lempert, and two municipal staff members over the additional testing, which is more than what is required by the State of New Jersey. Concerns following the discovery of a medical waste incinerator once in operation on the site led consultant Ira Whitman to recommend the extra sampling.

Princeton’s municipal attorney Trishka W. Cecil said Mr. Yoskin was hired because the heart of the case deals not only with land use issues, with which she is familiar, but also with various environmental regulations. “Council felt and I agree that we needed someone with expertise in this area,” she said. “It was also important to make sure that we’ve done everything we possibly can to win this case. It’s very important that the Court agree with us that this testing is necessary. Neil has a deep familiarity with the rules and regulations that apply here, and when you’re asking a judge to rule on something, you want to give her all the help she needs. Neil was the guy to do that.”

As to the conflict of interest claim, Ms. Cecil said, “We don’t feel Neil has any kind of disqualifying interest so we’re proceeding with him. Unless they make a motion and the Court rules on it, he’s fine to participate and represent the town.”