Court orders mediation in builder's remedy suit
Opponent says apt. complex would be out of character in boro
BY JENNA O'DONNELL Staff Writer

OCEANPORT- Abuilder's remedy lawsuit against the borough has been handed down formediation, according toBoroughAttorney John O. Bennett III.

During theMay 1 Borough Councilmeeting, Bennett responded to the concerns of River Street resident Debra Sharkey, who wanted to know the status of a suit that proposes the construction of an apartment complex in her neighborhood.

Superior Court Judge Dennis R. O'Brien sitting in Freehold sent the case to mediation, according to a May 1 letter, Bennett said. 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 stateCouncil onAffordableHousing (COAH).

A developer can bring a builder's remedy suit against amunicipality that has failed to provide the opportunity for affordable housing to be constructed. The suit seeks the right to constructmarket-rate housing in addition to affordable housing units that are sold or rented to individuals who have an income thatmeets guidelines established by COAH.

"The issue was that we were hoping that the court would find as Judge [Robert A.] Coogan had found that the plaintiff ofOceanport Holdings had to conduct good-faith negotiations before they filed the lawsuit,which clearly they did not. And so we were hoping that the judge would find that and in this case deny the builder's remedy,"Bennett said

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

"Judge O'Brien refused to rubberstamp Judge Coogan's ruling," Bennett said. "Its pretty clear that he really didn't want to make the decision.He set it up formediation.

"If they settle, obviously that will be the end. If they can't settle, itwill be sent back to Judge O'Brien for the purpose of having another case management and make a decision."

Bennett explained that a mediation allows the two parties to talk and the mediator has no authority to force the settlement. It is the responsibility of two parties to come upwith an agreement, andwhile there is no obligation to settle, there is an obligation to participate.

"The rulingwas no ruling," Bennett said. "[Judge O'Brien said] I don't want to deal with it, go see themediator. If you can'twork it out, I'll deal with it again. He did not do what the previous judge had done."

Sharkey said that she hoped that the residents of River Street and the surrounding neighborhoodswould be notifiedwhen there is action on the case.

"We are still very concerned aboutwhat's going on," Sharkey said. "We don't want to have that conflict. We, as a neighborhood, want to be involved."

The builder's remedywas 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 highrisewould not be consistentwith the scale of houses in the area, which are two-story structures.

According to Bennett, the plans for the complex have been altered from that initial proposal.

"They toned it down, but they are alleging that since we have not met our Mount Laurel obligation, they are entitled to have certain zoning in place and theywill provide units for affordable housing," Bennett said.

"From the start, Mr. Surenian said this is a long process and a costly one," said Councilman Jay Briscione in reference to attorney Jeffrey Surenian ofWall, who is representing the borough in the case.

Sharkey thought that it was good that the League of Municipalities was objecting to the third round COAH obligations, which she said places an unfair burden on small communities.

"I think that's a good idea because all these small towns, we don't have the funds to fight these two- to three-year battles," Sharkey said.

Bennett said that the council would be discussing their legal options during the executive session to follow the regular meeting.

"There are some options the council has to kick around in deciding what to do, but the mediation is what the judge has ordered," Bennett said.