Judge takes Helmetta’s side on snuff mill plan

Helmetta has won at least the first round in its legal battle with developer Kaplan Cos.

On June 28, state Superior Court Judge James P. Hurley ruled in favor of the Helmetta Planning Board in its denial of Kaplan’s application to drop the age restrictions from its housing proposal for the former Helme snuff mill site.

Hurley, sitting in New Brunswick, agreed with the board that the conversion to non-age-restricted housing would violate the terms of the redevelopment agreement that Helmetta’s Borough Council entered into with Kaplan in 2006. The redevelopment plan involved the borough conveying the snuff mill site to Kaplan for the construction of senior housing. Later, in 2007, Kaplan received Planning Board approval to build that development, consisting of 225 age-restricted units, a recreation center, a community center and retail space.

Kaplan returned to the board last year with the conversion application, based on a newly signed state law that was enacted in response to the diminished market for senior housing and the need for more affordable housing in New Jersey. Kaplan’s revised plan called for 200 housing units with no age restrictions, with fewer onebedroom units and more two-bedroom units than its previously approved plan. It also included more parking and set aside 20 percent of the residential units for low- and moderate-income housing. The Planning Board rejected the application in January, resulting in a lawsuit from Kaplan seeking a reversal of the decision.

While many towns are receiving similar proposals from developers seeking to drop age restrictions based on the new law, Helmetta’s case is unique, Hurley wrote in his decision, because it involves a redevelopment plan that the borough entered into with
Kaplan based on the town’s pursuit of senior housing and Kaplan’s proposal to build it.

“This court finds that granting the conversion singularly amounts to a modification of the redevelopment agreement without the consent of the borough,” Hurley wrote.

“There is nothing in the conversion statute even suggesting that the approving board is vested with such authority. An application by Kaplan to the board for the conversion can be considered a modification by one party to a contract. Unilateral amendments to existing agreements to change material terms is not permitted.”

Hurley also cited the state’s Municipal Land Use Law (MLUL), which encourages senior housing construction, and noted that although the state  recognized an oversupply of such housing last year when it enacted the law allowing for conversions, the Legislature did not amend the MLUL.

The judge suggested that Kaplan has other options, such as asking that the Borough Council amend the redevelopment plan, seeking an  extension to its previously approved site plan, or seeking an amendment to the construction schedule in the redevelopment agreement based  on market conditions.

Mayor Nancy Martin said borough officials were happy with the ruling.

“We have an area in redevelopment and we specifically contracted with Kaplan Companies to build a specific project,” Martin said. “We hope  they will meet with the borough and discuss moving forward with their project.”

Martin noted that the builder has the right to appeal the ruling, but stressed that “the residents of Helmetta do not want a project that is not age-restricted, and as I said in the past, if we did [want non-agerestricted housing] we could have had it years ago.

Jason Kaplan, president of Kaplan Cos., said last week that his firm is “disappointed with the judge’s decision,” and plans to file an appeal.

During Planning Board hearings in December and January, many residents and officials from both Helmetta and Spotswood, which share a  school district, came out in opposition to the conversion plan. Borough and school officials representing the two towns argued that Kaplan’s  new plan would be a detriment to the public good, and suggested that it could bring a potential burden on the school system and traffic.

Spotswood Borough Attorney James Kinneally estimated the housing could result in 200 additional schoolchildren, which he said would have a  “catastrophic” impact on the school system.

Reacting to the ruling last week, Spotswood Board of Education President Donna Faulkenberry said officials realize “that the situation is most  likely not resolved and an appeal should be expected.”

“Nonetheless,” she said, “we are certainly pleased with the judge’s decision.”