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Andover revokes zoning
By Andrea Levene, Herald Staff Writer - Tuesday, March 14, 2006

ANDOVER -- In what could be seen as an "Oh yeah, take that," the Borough Council revoked promised zoning Monday night that would have allowed a developer to more than triple the borough's population. The move came four days after Beazer Homes sued the borough to protect its right to build on 233 acres west of Route 206.

An attorney for the developer said the move would only cause his client to file another lawsuit.

"We understand that nothing we say tonight will slow or stop the train started here," said Donald Daines, of the Princeton-based law firm Hill Wallack. "If this is adopted, Beazer will have no choice but to file another suit to oppose it."

Seconds after Daines spoke, the Borough Council voted 4-0 to pass an ordinance revoking the promised zoning. Councilman Peter Pearson was absent.

"We believed this was a predetermined outcome," Daines said in an interview after the vote. "Unfortunately, litigation is the only outcome they left open."

Some residents asked the council if it could start an organized effort to raise financial support for what will likely be a long and expensive legal battle.

Mayor Shirlee Bollard said she has been contacting other municipal leaders in an effort to gain such support.

"I've been reaching out to other towns," she said. Bollard went on to suggest that the citizen group Save Rural Andover Borough start a fund-raising effort if it wants to help financially.

Councilman Donald Sienkiewicz suggested having the attorneys for the surrounding municipalities meet to discuss options.

Atlanta-based Beazer Homes filed suit Thursday to protect a general development plan a previous owner of the land reached with the borough in September 1989. That agreement, revoked by the council last month, would have allowed Beazer to build nearly 600 residential units on the property, which sits north of Brighton Road and west of Route 206. On Monday night, the Borough Council passed an ordinance reversing a plan for mixed-use zoning that was agreed to in July 1989 and led to the development plan.

Beazer Homes' lawsuit, filed in Superior Court in Newton, says the Borough Council acted beyond its authority when it revoked the general development agreement.

Beazer's lawsuit also says the council's attempt to change the zoning usurps the authority of the borough's planning board and that its agreement with the borough "made the property immune from any ordinance or regulations adopted thereafter for a period of 20 years."

In February, the council passed a resolution that declared the general development plan, an initial sketch of the proposal, "null and void," saying the developer needed to get an extension for the submission of its site plan from the both the Planning Board and the Borough Council.

In its lawsuit, the developer cites 1990 actions by the council and actions by the planning board dating back to 1989 as fulfilling those requirements.

Clinton-based attorney Richard Cushing, who has been retained as special counsel for borough, disagreed. The very nature of a general development plan, Cushing said, required that Beazer Homes return to the council and the planning board for extensions, rather than seeking them only from the planning board.

"There is a statutory scheme for a GDP and they didn't follow the scheme," Cushing said Monday afternoon. "The mayor and council have a vested interest in the process, not just the planning board. A GDP calls for a different process and the applicant needs to keep the governing body involved in the process."

The application for the development, which would add approximately 1,300 people to the borough's population of 660, was submitted to the Borough Planning Board in December and was deemed complete last Tuesday. A Planning Board hearing on the proposal is scheduled for May 1.

In a written statement, Beazer Homes calls the council's actions illegal, saying some members of the council have a conflict of interest and should not be allowed make any decisions on the development.

"These actions are wrong and illegal in themselves," the statement says. "They are made worse by the fact that, as Beazer has learned from public records, five of the seven members of the council are barred by law from voting on land use matters affecting Beazer's property because they live within 200 feet and may be voting in their own personal interest rather than the community at large."

The Beazer Homes lawsuit, filed by Newton-based Kelly and Ward, says Beazer never needed to appear before the Borough Council to receive an extension and asks that a judge step in to forbid the council from taking further action and award Beazer compensatory damages.

© 2006 The New Jersey Herald