Residents whose homes border 160 West Route 38 have spent nearly one year wondering about the fate of the nearby property. On Monday, March 25, they were one step closer to an answer with Judge Ronald E. Bookbinder denying Pennrose, LLC.’s request for summary judgment.
Pennrose, LLC, the site’s contract purchaser, is unable to construct its proposed 75 multi-family affordable housing units because of a restrictive covenant put in place in 1945 that limits development on the property. Bookbinder’s March 25 opinion states the covenant is still valid under the law.
In March 2018, Pennrose filed a complaint seeking to invalidate the restrictive covenant, which resulted in 64 nearby property owners being served legal notices. In response, more than 15 residents became involved in the case in an effort to stop Pennrose from invalidating the covenant.
A summary judgment is a judgement entered without a full trial. In his summary judgment decision, Bookbinder writes that the restrictive covenant is not “facially invalid” because deed restrictions and zoning ordinances that limit density “have long been lawful in New Jersey.”
The motion goes on to state the township, not Pennrose, is obligated to provide realistic opportunities for affordable housing. If after investigating alternative means, the township cannot meet its affordable housing obligation without the Pennrose property, all parties can return to the court to determine if the restrictive covenant is invalid to public policy or under common law.
“It was known all along by Moorestown that Pennrose’s case was weak, and that is why they tried to trick us into defaulting by telling us we were not being sued,” defendant Russ Smith said in response to Bookbinder’s decision.
Smith said many of his fellow residents defaulted on lawsuit, which has increased the legal fees for the remaining people.
“I am preparing to sue Moorestown for driving up my legal fees,” Smith said.
Resident Carol Radomski, a fellow defendant in the suit, approached Moorestown Township Council at its meeting last Monday night to inquire about the township’s plans moving forward.
“The judge today opened the door for you to be able to look at alternative sites,” Radomski said.
Township Attorney Kevin Aberant said he can’t directly answer questions regarding changes to the plan at this time. He said the township’s professionals will need to take a look at Bookbinder’s decision and see how it changes the plan moving forward.
Pennrose’s attorney, Joseph B. Fiorenzo, could not be reached for comment.
Resident Kathy Sutherland expressed her dismay with Bookbinder’s decision at Monday night’s council meeting. She said the site would have offered those residents close proximity to downtown and access to busing off of Route 38. She wondered about the impact this decision will have on taxpayers as the township investigates alternate sites.
“I certainly hope this doesn’t cause our taxes to go through the roof,” Sutherland said.
On Monday night, council passed an ordinance on first reading in furtherance of its current affordable housing plan (excluding the Pennrose site). The ordinance implements some of the necessary zoning changes to create affordable housing districts. The planning board will meet on April 4 to review the ordinance’s consistency with the master plan, and the ordinance is set for second reading and a public hearing on April 29.
The next meeting of Moorestown Township Council will take place on Monday, April 8 at 7:30 p.m. at Town Hall.
