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Andover sued again over development
Landowner's suit mimics builder's, claims zoning change designed to halt 590-home plan
By Jim Lockwood, Star-Ledger Staff - Tuesday, April 11, 2006

A firm trying to sell a tract in Andover where 590 homes are planned has sued the borough council for revoking the land's zoning to prevent such a development.

The civil complaint, filed yesterday in Superior Court in Newton by plaintiff Sussex Properties Ltd, is nearly identical to a lawsuit filed last month by the builder.

Sussex Properties is under contract to sell the land to Beazer Homes of Tennessee, one of the largest home builders in the nation. Both lawsuits allege the council has improperly tried to scuttle the project by revoking the town's 1988 approval of a "planned unit development" ordinance on which the housing plan was based.

Sussex Properties originally proposed the project in 1988, the same year the borough planning board approved a "general development plan" for the housing proposal that vested the developer's rights for 20 years, the lawsuit claims.

The massive development, which would be built on 235 acres between Route 206 and Brighton Road (Route 606) on the former Francisco Farm, would triple the borough's population of 650 residents.

The project was dormant for years. Several times since 1988, the planning board granted amendments and extensions of time for the project, and none of those actions were ever challenged, the lawsuit states. Opposition and concern arose after Sussex Properties entered a contract in 2004 to sell the land and its development rights to Beazer Homes.

The latest extension from the planning board last fall gave Beazer until Oct. 1 to file site plans, and the council has no authority to "rewrite, negate or contradict" the planning board's approval, the lawsuit states.

It was only after the Nov. 8 general election that the council began "unlawful and improper steps" to frustrate the development, which resulted in the ordinance to revoke the zoning, the lawsuit claims. That ordinance was introduced Feb. 13 and adopted March 13.

The council's reasoning for revoking the zoning was that a prior 1996 deadline for a preliminary site plan to be filed was never met, as well as "unsubstantiated concerns" about impacts on traffic, taxes, the environment, town character, affordable housing obligations and propriety of accepting municipal infrastructure improvements, the complaint states.

However, the planning board has sole jurisdiction over such matters, and the council has "usurped" the board's authority by adopting the ordinance, the lawsuit states.

It claims the council's actions are invalid, arbitrary and capricious; a breach of good faith; a violation of municipal land-use law, vested rights and affordable housing plan; and a denial of due process. Five of seven council members also have "non-waivable" conflicts of interest because they live within 200 feet of the site, according to the complaint.

Along with compensatory damages, fees and costs, the lawsuit seeks to have the general development plan declared valid and the council barred from taking any actions against it.

Andover Mayor Shirlee Bollard declined to comment on the lawsuit.

Jim Lockwood may be reached at jlockwood@starledger.com or (973) 383-0516.

© 2006 The Star Ledger