March 11, 2015

Battlefield Society Will Appeal “Illegal Do-Over”

The Princeton Battlefield Area Preservation Society (PBS) is preparing to file an appeal of the Delaware and Raritan Canal Commission’s approval of the Institute for Advanced Study’s plans to build faculty housing on land adjacent to Princeton Battlefield Park.

Calling the DRCC approval an “illegal do-over,” PBS attorney Bruce Afran said Monday that he would file the appeal later this week.

In January, the DRCC, which oversees and manages the Delaware and Raritan Canal State Park and protects the streams that feed into the canal, heard arguments from PBS that construction at the site would negatively impact wetlands. The site borders a stream corridor and comes close to wetlands overseen by the DRCC. After reviewing the Institute’s plans and hearing from both sides, the DRCC voted on the issue. The six commissioners present voted 3-2 in favor of the IAS. There was one abstention. According to the DRCC’s rules, four votes are necessary for approval. So, the IAS plans failed to gain the approval sought.

In February, the DRCC commissioner Mark Texel, who had abstained in January brought a motion to reconsider the previous month’s vote. With this second vote, the Institute’s plans were approved 5-2.

Mr. Texel is a state park service director and the change brought about by his reopening the matter has caused some concern.

Mr. Afran’s appeal of the DRCC decision will be based on the illegality of revoting after the agency had denied the application. “It is illegal for a member like Mr. Texel to re-open the vote on the grounds he gave. The only time a vote can be reconsidered is if there is a change of fact. Otherwise there would be no end to the process. Agency decisions are and must be final.”

When Mr. Texel asked the DRCC to reconsider the IAS plans in February, he gave the following explanation of his January abstention: “I believed on that day, as I do still today, that the project as presented by the applicant [IAS] fully complies with our commission’s regulations. As you recall, at last month’s meeting, I abstained from voting on the motion on the floor at that time to approve the proposal. I did so based on comments by our commissioners prior to the roll call vote that there were already sufficient votes in support of the proposal for it to pass without my vote needed. Therefore, I chose to abstain from voting out of respect to the objector, the Princeton Battlefield Society, which has been a very strong and faithful non-profit partner of the State Park Service. However, I believe the appropriate outcome is that this project be approved because it does comply with the D&R Canal Commission’s regulations. Therefore, I respectfully request reconsideration of the proposal so that I may cast my vote in support of it.”

Mr. Texel’s explanation has prompted cries of ”foul” from some quarters, along with questions about a process that would make “every agency vote subject to change.”

“An agency vote is final” said Mr. Afran. “The only time it gets reconsideration is if there is fraud or a fact was misunderstood. In this case there was no misunderstanding of the facts.”

“The IAS appears to have lobbied to get the vote changed and at some point they have to consider that what they are doing is historically and environmentally damaging,” he said.

Taking his criticisms a step further, Mr. Afran said: “This type of manipulation is common in New Jersey and this is why we have an independent court system. Across the state there are some 1500 planning, zoning, and governing bodies that are manned by unpaid volunteers who can be pressured and manipulated. The DRCC is an environmental agency. This governor favors development. He’s been trying to put pro-development commissioners on the DRCC and saw an opportunity in his bid for the presidency to curry favor with an important institution and to turn the DRCC.”

Chris Tarr, attorney for the Institute for Advanced Study would not comment for this article.

The Princeton Battlefield Area Preservation Society (PBS), which has long opposed the Institute’s plans to build seven single-family homes and two four-unit townhouses on environmental grounds and because, they contend, it would destroy a part of the battlefield where British and American forces fought in January 1777 during the Revolutionary War.

On behalf of PBS, Mr. Afran also filed an appeal in Mercer County Superior Court, Monday, March 2, of the Princeton Planning Board’s unanimous approval of the development last November.

Of the two appeals, Mr. Afran believes that the one against the DRCC is the more important. “If overturned, it would leave the Institute with few options,” he said. “Even so, it isn’t clear that the IAS can go ahead anyway, since they still have to demonstrate that they can engineer a way to keep drainage pipes out of the stream corridor. Our engineer has advised us that this would be impossible without a wall being moved some 20 feet and that would constitute a major redesign which would have to go back to the planning board.”

“This story is in its beginning stages” said Mr. Afran.

While Institute spokesperson Christine Ferrara declined further comment Tuesday, March 10, she reiterated the Institute’s pleasure of the DRCC’s approval of its “fully compliant faculty housing plans.”

“With the DRCC’s approval, we may now move to complete the other procedural steps necessary to officially begin the project,” she said, adding that with respect to the drainage pipes mentioned by Mr. Afran. “The nature of the DRCC’s approval is that we do not intrude into the corridor and we will not.”