Panel remands builder's suit against Oceanport
Appellate judges rule lower court decision was premature
BY JENNA O'DONNELL Staff Writer

OCEANPORT - A six-level housing complex may become a reality on River Street after an appellate panel sent a builder's remedy lawsuit filed against the borough back to the lower court.

The suit was filed in 2005 by Oceanport Holdings LLC of Red Bank in a "builder's remedy" lawsuit that sought the right to build the complex to help satisfy the borough's 183- unit affordable-housing obligation set by the state Council on Affordable Housing (COAH).

"The parties fought to a draw," said attorney Jeffrey Surenian of Wall, who represented the borough. He said the appellate panel did not say whether the trial judge was right or wrong, but merely that the decision was premature.

The suit was dismissed in July 2006 by Superior Court Judge Robert Coogan due to what he said was a lack of good-faith negotiations on the part of Oceanport Holdings.

"His decision was that we had not properly negotiated enough before filing the lawsuit," said Carl Bisgaier, the Cherry Hill attorney retained by the developer, "which was fatal to our claim."

While Surenian believes that revisiting the case will not change the trial judge's ruling, Bisgaier feels differently.

According to Bisgaier, the appellate panel found that the lower court ruling was "inappropriate" as "the plaintiff had … a legitimate right to appear and prosecute" but that the court should have first considered whether the zoning complied with state affordable-housing regulations.

The appellate panel concluded in its decision that "the determination whether a developer has 'attempted to obtain relief without litigation' is relevant only to its entitlement to a builder's remedy, which is a determination that should be made only after the developer has succeeded in establishing that the municipality's zoning

does not comply with its Mount Laurel obligations. Therefore, a developer's alleged failure to attempt to obtain relief without litigation is not a basis for dismissal of a Mount Laurel action."

The builder's remedy was originally filed in 2005 when the borough failed to adopt a zoning change for the proposal.

The developer claimed the proposed complex would help to satisfy the borough's mandated affordable-housing obligation with 12 units, or 20 percent of the units, slated for affordable housing.

However, borough residents opposed to the development said that the proposal was too big for the narrow roadway and a high-rise would not be consistent with the scale of houses in the area, which are twostory structures.

Surenian last week called the proposed building a "sixstory monstrosity," which would be an "enormously large structure where the highest buildings were two-story homes."

Additionally, he said that Oceanport

Holdings had requested the zoning change to build the complex without satisfying questions raised by the Borough Council.

Bisgaier's response to the concerns of residents was that the borough was unwilling to negotiate.

"We have tried to negotiate with the borough, made offers of settlement and have gotten nothing back," he said last week.

Bisgaier added that Oceanport's compliance claim falls far short of its obligation and that the borough will have to come up with a compliance plan.

"If a builder or plaintiff litigates and succeeds, they are entitled to a builder's remedy," Bisgaier said.

No court date has been set, and Bisgaier feels that his client will ultimately receive a builder's remedy.

Surenian said that the borough had "violated an obligation" to provide affordable housing, but has adopted a plan since the suit was filed.

The borough adopted two ordinances in November to fulfill COAH requirements as well as its Housing Element and Compliance Plan in order to comply with state regulations.