Baker Residential Settlement

STATEMENT REGARDING SETTLEMENT OF LITIGATION

Baker Residential, L.P. v. Township of Washington, et al.

On December 3, 2002, Baker Residential and several related companies filed suit against the Borough of Washington, the Borough of Washington Planning Board, the Township of Washington, Washington Associates and the Norfolk and Southern Railroad. The suit alleged that Baker Residential L.P. (“Baker”) was the contract purchaser of a 125 acre tract in the Borough known as Block 97, Lots 1, 2, 3 and 4 and Block 97.01. The suit contended that Baker had made application to the Planning Board for a major subdivision permitting the construction of 116 single family residences and 108 attached residences It pointed out the property was located in the R6 Zone which permitted single family attached and single family detached dwellings at a density of 4 units per acre. It contended that the density proposed by it was only 1.79 units per acre rather than the 4 units per acre permitted by the zoning.

The lawsuit further claimed that in September 2002, the Planning Board denied Baker’s application for subdivision and site plan approval. In its lawsuit Baker challenged the denial and also sued Washington Township, asserting that it had arbitrarily closed an access road, Washington Properties, alleging that it was improperly denying Baker access to its property and the Norfolk and Southern Railroad, alleging that Baker is entitled to a rail crossing over rail lines adjacent to its property.

After the denial of Baker’s application by the Planning Board, the Mayor and Council re-zoned the subject property to create a new Mountain District. The ordinance creating the Mountain District, which was adopted on December 16, 2003, changed the zoning for the subject property from the R6 Zone, which permitted 4 units per acre, to the M3 Zone, which permitted only single family detached dwellings at a density of 1 unit per 3 acres. Baker challenged this ordinance as being irrational and confiscatory.

Thereafter, extensive discussions were held between representatives of Baker and representatives of the Borough and its professionals. The Borough pointed out that it had numerous concerns with the original proposal by Baker, including the following:

The proposed development did not adequately respect the steep slopes and other environmental conditions that existed on the property
The property was being developed at too intense a nature.
The development provided for no Mt. Laurel housing
Baker had not provided adequate sidewalk access for the development.
The recreational facilities were anemic and not beneficial to the public in general.

After much discussion, a settlement has been reached with Baker which takes into account the municipal concerns and provides many additional benefits to the Borough. The settlement provides as follows:

Baker would be permitted to construct a total of 162 townhouses on the tract. This is a density of 1.3 units per acre. This compares to the original zoning which permitted 4 units per acre and the original proposal of Baker which called for 1.79 units per acre.
Baker has agreed to construct 18 Mt. Laurel units which will be dispersed throughout the site. This is an important benefit to the Borough because it provides housing for low and moderate income persons within this housing development. It does so by mixing them in with other units so that persons who acquire these units are not stigmatized by living separate and apart from the other residents of the development. It also fulfills the Borough’s growth share obligation as a result of this development. If the Mt. Laurel units were not included in this development they would have had to be provided in some other location in the Borough.
The original Baker plan called for a small isolated recreation area that would be available only for this site. In lieu of constructing that recreational area, Baker has agreed to pay the Borough $220,000 which can be used by the Borough to improve a new Borough park near Railroad Avenue. This significant contribution will fuel the development of this park and help provide a first-class recreational opportunity for all citizens of the Borough.
The development plan for the townhouses has been vastly improved as a result of the input from the Borough Planner and engineer. The new plan will result in less grading and destruction of some fragile environmental conditions on the site and will leave the majority of the forest in a natural state. Those slopes over 25% will not be developed and 50% of the property will be preserved. In addition, there will be no access to Ridge Drive in Washington Township thereby leaving the ridge top undeveloped. The land will be deed restricted and placed in the homeowners association or dedicated to the Borough. In either case, Borough residents will have access to any recreational facilities constructed thereon.
The developer will also provide a pedestrian system on Route 57 through Apartment Road and on to Lenape Trail thereby creating the better access that the earlier development did not.
The entrance to the development from Route 57 will be improved by the creation of a boulevard and appropriate landscaping.
The Borough will be reimbursed $40,000 toward its professional fees for defending the lawsuit. The fees that would have to be paid to the Planning Board attorney, municipal attorney, Planner and engineer, if the lawsuit continued, will be substantially reduced since the dispute between Baker, the Borough and the Planning Board have been resolved.

In order to make sure that the Borough gets input with respect to this proposed settlement, the following process will be followed. Tonight we will be introducing an ordinance to amend the zoning for the subject property to reflect the settlement. A hearing will be scheduled on the ordinance for a special meeting scheduled for June 29, 2005 at 8:00 pm. On June 13, 2005, the Planning Board will consider the Master Plan Amendment and vote to schedule a public hearing on that amendment for June 29, 2005. Copies of both the ordinance and the proposed Master Plan Amendment are attached to the Settlement Agreement, copies of which are available tonight.

In addition, to make sure that there is adequate public input and to satisfy legal requirements, a hearing will be scheduled on the proposed settlement on June 29, 2005. The developer, our planner, engineer and attorney will be available on that night to answer any questions.

Our view is that the settlement is good for the Borough. It achieves a reasonable density for the property. It avoids environmental destruction, preserves slopes and ridge lines, makes provision for access of the property to Route 57, and the part that I really like is the fact that we will get a substantial contribution to improving our new park so that it will become a place for all of our citizens to relax and enjoy.