AvalonBay and Princeton have entered into a settlement that will suspend AvalonBay’s litigation that had threatened to see the two sides square off in Mercer County Court at the end of April. The court case related to the Princeton Planning Board’s decision to reject AvalonBay’s redevelopment plan for the former Princeton University Medical Center site on Witherspoon Street. We are relieved that a costly court battle has been avoided, but we can’t help wondering: what made AvalonBay decide to give up on the court fight at such a late stage?
Although we don’t have any insider information about what is going through the minds of AvalonBay senior management, we can speculate based on the available documents. AvalonBay seemed to have a fairly strong case (you can find their full court filing at PlanetPrinceton here). Several members of the Princeton Planning Board supported their application, purely because they thought AvalonBay would defeat them in court. Yet Princeton was not giving up without a fight, and it looked like a judge would have to decide whether the Planning Board decision was fair or not.
AvalonBay’s court filing definitely played the victim card. They complained that they had been treated unfairly for not doing things ‘the Princeton Way’. The Princeton Planning Board, in their written justification for denying the application, accused AvalonBay of presenting a plan that “excludes the public and turns its back to the broader neighborhood”. Some of this is barely better than playground name-calling. What was the factual basis for the Planning Board decision, and was it reasonable?
The Planning Board Decision And The ‘Design Standards’
The Planning Board decision rested on two key reasons: (1) The AvalonBay plan did not include sufficient routes for pedestrians to circulate around the site, and (2) AvalonBay did not provide sufficiently detailed schemes of their plan to allow it to be properly evaluated. Of these two reasons, the second appears extremely weak. The Planning Board could easily have asked for more detailed explanation at any point, but did not do so. We doubt that this reason would have stood up in court.
That takes us to the primary reason: the lack of pedestrian circulation. In 2006, based on citizen input, a list of ‘design standards’ was drawn up to guide future development of the site. One of these ‘design standards’ required ‘pathways that provide linkages between and through the development as well as the surrounding neighborhood’. We previously discussed how the AvalonBay plan had many features in common with Holder Hall, a much-loved Princeton University landmark. Like Holder Hall, the AvalonBay proposal was one large building with two courtyards in the middle. However, the AvalonBay plan did not afford as many opportunities for pedestrians to enter these central courtyards. In fact, just one entrance was provided.
AvalonBay’s first line of attack was to argue that the Design Standards were never intended to be a set of hard-and-fast rules that a developer would have to follow. AvalonBay cited numerous statements by Princeton official talking about how the Design Standards were, for example, ‘really suggestions’. The lawyer for Princeton Borough, Henry Chou aadvised that the Design Standards were unenforceable on this project. Princeton Borough Council also neglected to take an opportunity to try to strengthen language in the zoning ordinance relating to the Design Standards, believing them to be inherently unenforceable. However, although there may have been some confusion about whether the Design Standards were rules or a wish-list, by the time of the Planning Board’s decision, the Township attorney, Gerard Muller, was advising that the Design Standards were indeed enforceable. The language in the site ordinance seems to support his view, stating, “the following criteria and standards shall be used by all municipal agencies in reviewing application…” Based on this word ‘shall’, we think that AvalonBay would have failed to show in court that the Design Standards are non-binding.
How Much Pedestrian Circulation Is Required?
If the Design Standards do apply, was AvalonBay’s application acceptable? It really depends on whether you accept that the AvalonBay plan had the necessary “linkages between and through the development as well as the surrounding neighborhood”. There is some vagueness here. There were clearly linkages between the development and the surrounding neighborhood. There were also linkages through the development, if you include a route along the service lane and through the parking garage. As such, the AvalonBay application may have fitted within the letter of the law. The Planning Board written decision addresses this point with hyperbole, arguing that such a pedestrian linkage would represent ‘a public safety disaster’. That is a very subjective opinion, and one that we think would not have found favor with the judge.
There is another problem with the Planning Board decision on this point: they take 4 1/2 pages to argue why the AvalonBay application did not meet the requirement for sufficient pedestrian linkages. The Design Standards are legally unenforeceable if they are vague, and if it requires 4 1/2 pages to argue a point, that probably means it relates to a vague standard. Nonetheless, only the judge would be in a position to rule on this matter.
Does ‘Mount Laurel’ Legislation Trump The Design Standards?
As expected, AvalonBay argued that the Design Standards were in violation of State law, known as the ‘Mount Laurel’ statutes, which prohibits zoning requirements that would add unnecessary cost to a development that includes affordable housing. The AvalonBay plan would have included 56 units of affordable housing. The Planning Board decision pre-emptively addressed this potential argument, by pointing out that a redesign of the plan to include improved pedestrian circulation would have been no more costly than the original proposal. This would appear to be a strong argument, that we think would give Princeton victory on this point.
AvalonBay also argued that the development should go ahead because the 56 units of affordable housing were required to fulfill Princeton’s plan to provide affordable housing. This is not a very strong argument, because the 56 units of affordable housing could be provided by anybody- it doesn’t have to be AvalonBay that gets to build them.
Trying To Guess The Outcome
It appears to us that AvalonBay had a slight advantage with their litigation. Court cases are hard to predict, however, and it seems likely that AvalonBay came to the conclusion that a negotiated re-application might result in quicker progress. There is another possibility, which is that AvalonBay don’t want to upset people in Princeton by using legal force to get their way. We doubt AvalonBay would do anything for sentimental reasons, but AvalonBay might have other future applications in mind and don’t want to ruin their relationship with Princeton municipal officials.
A key advantage for AvalonBay of pursuing a re-application in the context of the current ‘consent agreement’ is that it may be exempt from re-zoning of the hospital site. In January, an ad-hoc committee was appointed by the Princeton Council to make recommendations on changes to the hospital site zoning. This committee met several times and considered a number of recommendations, including reducing the maximum number of allowed units from its current limit of 280, and, among many other additional regulations, banning any possibility of a drive-through bank on the site. Although no final report appears to have been issued by this committee (the issue was apparently on hold pending the AvalonBay litigation), these new zoning ordinances might have applied to a future application if AvalonBay lost in court. Perhaps AvalonBay considered that the best way to get a profitable, 280-unit development built was by going back to the table and trying to find a plan that will make everybody happy.
Where Do We Go From Here?
As of today, the future development of the hospital site is not clear. AvalonBay and the Princeton Council have apparently been working behind closed doors to come up with a new plan for the site that would be submitted to the Planning Board for review in May. Both sides would be bound by a ‘consent agreement’, the terms of which have not been published. Based on statements from Mayor Liz Lempert, a team from AvalonBay are revising their plan to be more objectively compliant with the Design Standards. Presumably AvalonBay believe that by conforming to the Design Standards, they will win approval from the Planning Board to move forward with a development. If the Planning Board approves their new plan during the summer, ground may be broken on the development before the end of the year.
This timeline assumes that a new plan would meet with approval from the Planning Board- which is not a sure bet. During the hearings on the previous AvalonBay plan, statements from members of the public at the Planning Board meetings were overwhelmingly negative. The Planning Board Decision claims to be independent of the public testimony, but it is hard to imagine that the individual members of the Planning Board were not influenced by vocal opponents of the plan into taking a narrow and strict interpretation of the Design Standards. Given the large number of regulations and ordinances relating to the site, the Planning Board could give AvalonBay another runaround, wrapping the project in red tape, and using administrative process to stall development. AvalonBay has previously claimed that they must get the green light on the project before the summer, or they will give up on the development. Skeptical Planning Board members might reason that a little more stalling might be enough to chase AvalonBay out of town. However, AvalonBay could still re-activate their dormant litigation in this eventuality.
Even if AvalonBay can somehow get past the Planning Board, we predict another court battle down the road. ‘Princeton Citizens For Sustainable Neighborhoods’, a protest group that opposes the AvalonBay development, is scrutinizing every aspect of the process and has retained legal representation. With the previous AvalonBay plan, this group prepared a list of alleged zoning problems that might have been sufficient to stall or block the project even if the Planning Board decision relating to the Design Standards had been over-ruled. Based on their track record, it seems likely that this group will seek to challenge any new AvalonBay plan in court. Members of PCSN are already complaining about the process for review of a potential new AvalonBay plan, even before any details of the plan have been published!
Members of the Princeton Community might want to get used to having the vacant hospital building around. It seems likely that it will be a long time before redevelopment of this site happens.