Berkeley Township’s tardy response to K. Hovnanian’s lawsuit raises the question of whether the Township is really trying to win.

September 23, 2002

Contact:

Willie deCamp, President
Save Barnegat Bay
732-830-3600

Would the leadership of a township deliberately try to lose a lawsuit in order to benefit a developer to the detriment of their own constituents? A recent inspection of the record in the case of K. Hovnanian v. Berkeley Township raises this troubling question.
The history of this case – as is often the case with things legal – is long. On March 15, 2001 the Berkeley Township Council, with encouragement from Save Barnegat Bay, voted not to accede to the request of developer K. Hovnanian to rezone the 800-acre New Jersey Pulverizing site on Route 9 in Bayville so as to allow the building of 1,600 new homes.
Immediately prior to that vote Save Barnegat Bay had publicly questioned the Township’s motives in waiting over six months without denying K. Hovnanian this lucrative but highly unpopular rezoning. We questioned whether favoritism was being shown to K. Hovnanian in order to benefit certain politically connected Democrats.
The Democratic leadership of Berkeley Township – expectedly – vehemently denied that they were doing anything other than putting the public’s interest first. Their behavior in the eighteen months that have since elapsed, however, only reinforces our reasonable doubts.
Shortly after the Council voted not to change the zoning, K. Hovnanian filed a lawsuit under New Jersey’s affordable housing regime – also known as “Mt. Laurel” – seeking to have New Jersey Superior Court force Berkeley Township to allow them to build.
This “builders’ remedy” lawsuit did not initially alarm the environmental community because Berkeley Township has a ready defense at hand. Under a complicated but fair system called “credits without control”, the state allows municipalities to meet their affordable housing obligation by demonstrating that a sufficient quantity already exists in their neighborhoods.
In order to win the suit filed by K. Hovnanian, Berkeley Township need only demonstrate to the satisfaction of the judge that sufficient affordable housing that meets the state’s criteria already exists. Given Berkeley’s demographics, this should not be a difficult task.
The problem, however, is that Berkeley Township has been extremely – and in our opinion suspiciously – tardy in making this demonstration. For the last three months, since June 24, the township has made no move to respond to K. Hovnanian’s most recent report, as is required in this legal proceeding. In the face of this unnecessary delay, the legitimate concern arises that the judge might opine that “justice delayed is justice denied” and rule in favor of K. Hovnanian and against Berkeley Township.
Berkeley’s unreasonable delay in responding to K. Hovnanian – when considered in the light of their dubious behavior at the outset of this case – is disturbingly consistent with the interpretation that they are deliberately trying to throw this lawsuit, or at the very least that they do not much care if they lose. The result is a legal forum in which both sides appear to be representing the developer, and no one – except potentially the judge – appears to be representing the people.
If Mayor Jason Varano and the Berkeley Township Council sincerely wish to defend their constituents’ interest, the vigor with which they are pursuing this case should be upgraded to a level comparable to the vigor with which they protested their own innocence when Save Barnegat Bay first questioned their motives eighteen months ago.
The people and the environment deserve no less.

Here’s what Berkeley Township’s leadership COULD DO to curb overdevelopment.