'Stealth' move by Wayne officials in housing case costs township tens of thousands
WAYNE — A judge has ordered the township to pay more than $141,000 in fees and penalties to a Virginia-based developer, ruling that the Planning Board slowed progress on its housing project.
The delay was allegedly caused when the board approved a resolution last January to impose the installation of an elevator in a 3½-story building that the developer, AvalonBay Communities Inc., never agreed to put in.
AvalonBay will construct 473 units in 15 buildings, in addition to a clubhouse and a swimming pool, at the site of the former headquarters of Valley National Bank. Seventy-one units will be for low-income households.
The developer closed on the 17-acre property for $17.1 million in September. It is composed of two lots at the T-intersection of Barbour Pond and Valley roads.
When attorneys for AvalonBay found out about the “stealth resolution” for the elevator, they objected to it and later filed a motion to have it invalidated.
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But by that time, nearly six months elapsed.
Judge Darren Del Sardo, sitting in state Superior Court in Paterson, decided that the board action, whether intentional or not, hampered the project.
“Instead of focusing on the next steps,” the judge wrote in a 14-page order, the developer was “forced to litigate the validity of the board’s supplemental resolution.”
Controversy over the elevator is only the latest dispute between AvalonBay and the township.
Their negotiations turned so sour by November 2020 that Del Sardo’s predecessor, retired Judge Thomas Brogan, ruled officials were to blame for “concerted procrastination,” stripping the township of its immunity from builder’s remedy lawsuits — a severe punishment.
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Brogan nullified the elevator resolution in August, finding that the board action constituted “bad faith conduct.” He affirmed an earlier version of the resolution preferred by the developer.
Brogan also awarded AvalonBay a “reasonable” sum based on the cost it incurred for filing the motion and for having to wait for months for the issue to be sorted out.
Soon after, Del Sardo stepped in to replace him. In his first major ruling in the case, he set a specific amount for fees and penalties to be assessed against the township: $28,910 for the cost to hire attorneys, plus $112,500 in per diem fines.
The settlement between the developer and township provides for a $500-per-day penalty for inexcusable delays.
Del Sardo ruled that there were two separate delays, causing the project to be held up for 225 days.
“Here, the court is not rewriting the settlement agreement,” the judge wrote. “The board, by enacting the supplemental resolution, rendered the initial resolution unworkable and essentially void.”
Attorneys for the board said at a court hearing that AvalonBay was culpable of causing the delay because it backtracked on a proposed tradeoff for the installation of the elevator.
The board offered 10 extra units, but the deal went south.
“If there’s any delay in this case,” said Matthew Cavaliere, the board attorney, it was due to the developer “switching up.”
Cavaliere and Mary Anne Groh, an attorney who represents the board in affordable housing matters, also argued that AvalonBay was “double-dipping” by claiming counsel fees on top of per diem fines.
Philip DeVencentis is a local reporter for NorthJersey.com. For unlimited access to the most important news from your local community, please subscribe or activate your digital account today.
Email: devencentis@northjersey.com
This article originally appeared on NorthJersey.com: Judge levies fines against Wayne for delaying housing project
