Fake News: Amended settlement is a “win-win” with less “financial risk”! (NOT!)

What should you believe? What the mayor said, or the legal agreement he signed?

Mayor John Higgins says the new amended affordable housing settlement agreement with Fair Share Housing Center (FSHC) is “a really good thing for the township” because by substituting the LeCompte property for Windy Acres “the financial risk in this instance is associated with CIS, not us.”

The trouble is, Higgins is not telling the truth.

The truth is in the settlement agreement. And the settlement agreement says Clinton Township taxpayers are on the hook for untold financial risks because the settlement agreement hands FSHC a blank check — and the keys to the township.

Higgins explained that a developer — Community Investment Strategies (CIS) — would purchase and develop the LeCompte affordable housing project.

Higgins says:

“…the benefits to the township include the, ah, for instance at Windy Acres it’s our project so we would be on the hook for financing if really good financing is not obtained. Ah, the financial risk in this instance is associated with CIS, not us.”

But the settlement agreement says that if there’s any problem delivering the housing on the LeCompte site, the financial risk falls on the Township. (And the planning board has already raised serious questions about the township’s choice of affordable housing developers.)

But the settlement agreement says:

10.c. “In the event for any reason that the LeCompte development is not under construction for any reason within 48 months of the court’s approval of this Agreement at a fairness hearing, the municipality shall take all necessary steps to provide and demonstrate the provision of a realistic opportunity for the units identified for development on the site. The Township shall do this by funding the development using municipal funds…

The agreement clearly creates a financial risk for the Township.

Considering that the Fair Housing Act does not require any such expenditure, why is Clinton Township — or any other town — agreeing to anything  of the kind?

NEW JERSEY FAIR HOUSING ACT
N.J.S.A. 52:27D-301 et seq. Amended July 2008

52:27D-311 Provision of fair share by municipality.
11.d. Nothing in [the New Jersey Fair Housing Act] {P.L.1985, c.222 (C.52:27D-301 et al.)} shall require a municipality to raise or expend municipal revenues in order to provide low and moderate income housing.

The township’s planner, says:

“The one benefit of them [CIS], um, you know, sort of owning this project is that they will almost entirely fund the project, where as the mayor explained there is significant risk associated with the development of the Windy Acres site.”

Um, you know, sort of… they will almost entirely fund the project?

Say what??

But the settlement agreement says:

9. “…in the case where an application for outside funding is still pending, the municipality shall provide a stable alternative source, such as municipal bonding, in the event that the funding request is not approved.”

How is there no significant risk when the township has agreed to bond if a problem arises with getting outside funding for LeCompte? Taxpayers will pay untold amounts. The agreement has no limits.

Higgins says:

“I think it’s a real gain for the township, um. When we have… we really like 100% affordable projects because they’re a nice compact footprint, they don’t come with so-called extra housing. But they do come with financial risk. So this, this takes that site out and, and really, the financial risk to us at this point, um, for 100% affordable, is limited to the 84-unit Marook– uh, development we plan to do on Marookian. So it’s, it’s a, it’s a really good thing for the township.”

The financial risk is limited to Marookian? The agreement puts the financial risk on  LeCompte and Marookian exactly the same way!

But the settlement agreement says:

“The parties recognize that the Marookian and LeCompte developments… may not receive sufficient funding… the municipality shall… make up the difference… by funding the difference…”

The mayor calls the new deal “a real gain for the township” and he distinguishes between the financial risk posed by LeCompte and that posed by Marookian — but the mayor signed a contract that says “the parties recognize” that Marookian and LeCompte can trigger the same financial risks for the Township.

The mayor signed a deal that says in the event there’s a problem obtaining funding for either site, Clinton Township will “fund the difference.”

In whose version of reality is that “a really good thing for the township?”

Take that, Readington, old buddy-type pal!

Not content to mislead Clinton Township residents, Higgins throws a callous misrepresentation at Readington Township as well.

When Readington hit the ceiling upon learning Higgins’ settlement deal included a commitment to sue that town “if needed” to seize its sewer capacity for Windy Acres, Higgins removed Windy Acres from the deal — and disingenuously cast himself as Readington’s hero.

Higgins said:

“Yeah, and it, it eliminates friction with, uh, Readington, for instance, in terms of, you know, both of us going for, uh, sewer capacity within the same, uh, sewer district. So, I think it’s a real gain for the township.”

But the truth is:

Clinton Township can in no way “go for sewer capacity” in Readington’s sewer service district. That would be like your neighbor claiming he’s a nice guy because he isn’t going to “go for thee money” in your bank account after all! 

Clinton Township is not a part of the Readington-Lebanon Sewer Authority and has no right to or access or claim on RLSA capacity. That is to say, the Windy Acres site was bogus from the start because it relied on confiscating another town’s assets.

“Sounds like a win-win-win!”

After shamelessly delivering total and complete misinformation and fake news about the amended settlement agreement with Fair Share Housing Center, a resident’s public comments triggered self-congratulations all around at the February 7 council meeting.

“Sounds like a win-win-win! So I mean, a lot of wins for the township in the amended agreement then…!”

Real News: Clinton Township has been set up

Again and again and again the amended settlement agreement requires Clinton Township taxpayers to provide undefined, unlimited funding — including new bonding — to pay for these projects if anything goes wrong with this plan.

The deal is a set-up by Fair Share Housing Center — and the mayor and council walked into it like rubes or, perhaps, like politicians who have some other agenda.

The plan is designed to fail
Fair Share Housing Center has ensured that many of the affordable housing sites in this plan are included under “durational adjustments.” This means they are not presently compliant with affordable housing criteria. They lack some critical requirement like water, sewer, funding or permits or approvals.

The plan is designed to fail.

Taxpayers will pay
If those critical requirements are not met on schedule, FSHC will swoop down and require Clinton Township to pay with “municipal funds” — or “bonding.”

This agreement hands FSHC a whole series of blank checks signed by taxpayers.

Can the mayor and council guarantee the penalties and contingencies will never be invoked? Of course not.

  • Then why did John Higgins, Brian Mullay, Amy Switlyk, Dan McTiernan, and Tom Kochanowski put those penalties and contingencies in the agreement?
  • Why did they hand the keys to Clinton Township over to a group of private lawyers who are Public Enemy #1 to every town in New Jersey — then hand FSHC a $30,000 donation to boot?

For the same reason they agreed to sue Readington Township for sewer capacity. Fair Share Housing Center told them to.

FSHC controls township zoning
Worse, the penalties and contingencies give FSHC control over Clinton Township’s zoning for years to come.

The mayor and council have agreed in advance that undefined properties in town will be re-zoned “at a density equal to or exceeding 10 units per acre net density” until the terms of the agreement are satisfied.

Under this agreement, FSHC owns Clinton Township.

It’s all in the “new, amended” settlement agreement

It’s all in the new deal that Mayor Higgins has completely misrepresented as “a really good thing for the township” with the silent backing of four council members. It’s all in the agreement the mayor signed. Read it.

(All audio excerpts and quotes are from the official recording of the February 7, 2018 council meeting.)

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Township’s Housing Plan Crashes

In a stunning reversal, the Clinton Township Council gutted its affordable housing settlement deal with the Fair Share Housing Center, at its February 7 meeting, just five days before the scheduled Superior Court Fairness Hearing.

Conflicts appear to have crashed the deal

Apparently unable to respond to objections filed with the court about conflicts of interest involving the township’s attorneys, Mayor John Higgins pulled the plug on the Windy Acres component of the plan. The council voted on February 7 to amend the deal to remove the Windy Acres site.

Higgins and the council reportedly worked on the plan for a year and thought they had it wrapped up when they voted to approve it in a rush on December 13, 2017. But it came crashing down, apparently under the weight of objections.

The bone of contention is that the township’s attorneys negotiated and wrote the settlement deal, which provided that “if needed,” Clinton Township would sue neighboring Readington Township to obtain sewer capacity for Windy Acres. But the same attorneys also represent Readington, and the same attorneys can’t be on two sides of a transaction.

Higgins has stated publicly that the contractual provision to sue Readington was merely “an option” — but one he did not intend to take.

At the January 3, 2018 council meeting, Clinton Township attorney Trishka Waterbury Cecil, whose law firm Mason Griffin Pierson also represents Readington, explained to the public that it did not “obligate” the town to sue — but did not explain why, then, it was included. The agreement requires the township to use litigation “if needed.”

“Overkill”

Then Cecil nervously dropped the bomb: She said the clause was “overkill” — but included it anyway, and let the township sign it.

Mayor Higgins did not explain why the town council agreed to the provision to sue if he didn’t intend to use it. “Overkill” seems to be an understatement that Readington was not prepared to accept.

According to Court records, the township filed a response to an objection submitted by developer Clinton 94, but did not respond to the conflicts objection, suggesting the town was unable to surmount the conflicts of its lawyers. The township seems to believe that the last-minute removal of Windy Acres from the deal, which eliminates the lawsuit threat, thus moots the conflicts objections.

No time to comply with Open Public Meetings Act

But conflicts of lawyers were not the only potentially fatal problem the agreement faced in court. When discussing the amendment to the settlement deal on February 7, Higgins skirted all the objections filed with the court for the fairness hearing. He mentioned none of them.

The township faced a cascade of problems that could have led Judge Miller to reject or stay the settlement agreement at the impending February 12 Fairness Hearing. Not least among them was a complaint filed by exMayor.com alleging the township prejudiced the ability of the public to file proper objections because the township illegally withheld public records.

According to a letter submitted by exMayor.com’s attorney to the township, the township admitted to multiple violations of the Open Public Meetings Act because it failed to create and make available records of written planning board minutes going back a year. Lack of access to these records interfered with the ability to file objections.

Conceding the Windy Acres sewer problem

It also seems likely the town realized it would have a difficult time defending its commitment to provide sewer service for the Windy Acres site. This is an historic problem that has sunk all other efforts to develop affordable housing there, including by Pulte Homes. (See Windy Acres: The fatal fraud in Clinton Township’s affordable housing scheme.)

(This is 12 minutes excerpted from the official Planning Board recording of the March 16, 2015 meeting, where sworn testimony was taken on the township’s latest affordable housing plan. The audio is noisy but understandable. The recording is not available on the township website. It was obtained under OPRA request.)

Any of these issues could have led the court to reject or stay the settlement agreement until the problems were cured.

Readington outraged

The conflicts problem arose after Readington officials learned about the provision to sue Readington Township and the Readington-Lebanon Sewer Authority “if needed” to obtain sewer service for Windy Acres.

Readington officials were reportedly outraged, especially in light of the fact that Clinton Township’s Special Counsel for Affordable Housing, Jonathan Drill, and its municipal law firm, Mason Griffin Pierson, also work for Readington.

Readington officials report that none of the attorneys — or Mayor  Higgins — bothered to notify Readington of the multiple conflicts of interest they created with the FSHC agreement, or that they included the provision to sue the neighbor town.

A solution out of LeCompte’s left field

With Windy Acres removed from the stack of seven affordable housing sites designed to deliver a total of 805 new housing units to the township (373 of which are to be “affordable”), Mayor Higgins announced a replacement known as the LeCompte property.

LeCompte is located at the southern corner of Route 31 north and Valley Crest Road. The new plan designates 10 acres of LeCompte to receive the 89 affordable units originally slated for Windy Acres. Residents may know Robert LeCompte as the owner and operator of Valley Crest Farms, which operates the popular produce stand at Route 31 and Allerton Road.

According to Mayor Higgins’s statements at the February 7 council meeting, Robert LeCompte will sell 10 acres of his land to a Lawrenceville-based affordable housing developer, Community Investment Strategies (CIS). The Hunterdon Review reports CIS will build the required units “at its own expense.”

However, this new site appears to come literally out of the LeCompte property’s “left field” because Mayor Higgins stated he doesn’t know which part of the property the owner might sell to CIS.

Another “durational adjustment”

The LeCompte site appears to be a hasty, last-minute substitution. It has been tagged as needing a “durational adjustment,” which means the township will have to figure out how to make it comply with requirements for water and sewer — later.

Nothing about it seems to be certain:

  • CIS has not purchased or contracted for the 10 acres, merely “expressed an interest.”
  • The mayor offered no evidence that Robert LeCompte has committed to selling his land to CIS. (In fact, LeCompte bought the land out from under Clinton Township’s nose several years ago when he out-bid the township for it.)
  • CIS has made no commitment to build the housing units.
  • The site does not have water or sewer capacity allocated to it.
  • It is not known which 10 acres of his property LeCompte might sell to CIS, or where the units would be built.
  • No timeline has been offered.

No evidence has been provided that the new site complies with State affordable housing law, which requires that a chosen site “provides a realistic opportunity” to deliver the affordable housing units required.

Un-researched article

Hunterdon Review reporter Claire Knapp’s article suggests the newspaper apparently did not check directly with LeCompte, CIS, or Readington to verify any of the claims Higgins made at the council meeting.

Nor did the Review attempt to confirm Higgins’ claim that Readington was “told by former Clinton Township Mayor Nick Corcodilos that the FSHC settlement stated Clinton Township would be suing Readington for sewer capacity to serve Windy Acres.” Neither party was contacted by Review reporter Claire Knapp.

Knapp’s article — and Mayor Higgins — failed to mention the other controversies swirling around the sudden amendment of the settlement deal, including the OPMA complaint that was included in exMayor.com’s objection to the court, and the attorneys’ conflicts of interest, or objections filed by several other parties including developer Clinton 94.

Township attorney Jonathan Drill has confirmed that the Fairness Hearing scheduled for February 12 has been cancelled, as previously reported here. A new Fairness Hearing has been scheduled for March 19, 2018. Those wishing to participate are required to submit their objections in writing to the court no later than Friday, March 2, 2018.

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Objection: Why the Court should reject the affordable housing settlement

On January 29, 2018, exMayor.com filed an objection with the Superior Court to Clinton Township’s affordable housing settlement agreement with Fair Share Housing Center.

The objection focuses on several issues including the township’s violations of the Open Public Meetings Act (OPMA), conflicts of interest of its planning board and municipal attorneys, and conflict of interest of the court’s appointed special master in the case. Nj.com and the Hunterdon Democrat reported the OPMA violation story.

Doing public business behind the veil

In light of these problems, exMayor.com has asked the court to reject or stay the agreement until the OPMA violations are cured and the township schedules a public hearing in the township, not in court, so the township council may present the settlement agreement and the affordable housing plan to the public, and so the public may participate fully in the process.

Conflicts galore

The objection also asks the court to remove township planning board attorney Jonathan Drill and municipal attorney Trishka Waterbury Cecil from the process and proceedings because the attorneys and their firms have a conflict of interest in that they also represent Readington Township, which the settlement agreement they negotiated with Fair Share Housing Center threatens to sue “if needed.”

These attorneys are on both sides of the transaction and the objection asks the court to consider what the proper action is to cure the conflict.

Conflict of the court’s special master

The objection also asks the court to remove special master Michael Bolan from his role as advisor to the court on the settlement. Bolan was the township’s professional planner in 2005 when a similar affordable housing settlement deal was prepared with his help — a deal that included Windy Acres, which is one of the properties in the current settlement. Bolan advocated for the settlement in 2005 in a questionable manner and later was not reappointed township planner in part due to it.

An unfair process

These conflicts of interest and the township’s failure to keep planning board minutes as far back as 2016 combine with the council’s secretive behavior to suggest an intention to deprive the public of a fair and open government process.

The objection goes on to say that:

“A fairness hearing ensures the process and substance of this settlement agreement is fair to the public. The OPMA guarantees the right of citizens to an open and public government process — that is what makes it fair. The formation of this public policy was not open or public or transparent — thus it was not done fairly. In fact, it seems clear this governing body went out of its way to avoid ever discussing, presenting or disclosing the settlement deal to the public. Its failure to produce minutes of planning board meetings is particularly troubling.”

The objection document includes a Certification and a Letter Brief that detail the history of the matter and present arguments to support the request to the court to stay or reject the settlement.

While the court has cancelled the February 12 Fairness Hearing, it appears that a new Fairness Hearing will be scheduled after the council amends the settlement agreement. It is unknown at this time what the amendment will be.

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Feb. 12 Superior Court Fairness Hearing Cancelled

According to the clerk at the Superior Court Law Division in Somerville, NJ, the February 12 Fairness Hearing for the affordable housing settlement between Clinton Township and the Fair Share Housing Center has been cancelled.

According to the clerk, the Fairness Hearing must be rescheduled after the council amends the settlement agreement.

Settlement to be amended

Clinton Township just issued a revised agenda for its February 7 council meeting, adding a 6:00 pm closed session about the settlement. The agenda includes an Action Item upon return from closed session at 7:00 pm:

“Motion regarding proposed amendment to settlement agreement with Fair Share Housing Center in In the Matter of Township of Clinton v. State of New Jersey, Docket No. HNTL-315-15.”

It appears the terms of the settlement will be modified, resulting in the cancellation of the Fairness Hearing. The Court clerk said a new Fairness Hearing would have to be scheduled for an amended agreement.

Marookian site approved by Court

The Court also issued today an “Order Approving The Marookian Affordable Housing Project And Certifying The Township’s Compliance Plan To Date As To That Project.”

This appears to be the Court’s decision about an objection filed by a developer, Clinton 94, LLC, that sought to remove the Marookian site from the plan and to substitute its own. The Court order does not appear to rule on other objections filed about the settlement agreement.

What is the amendment?

It is not known what “amendment” the council will make to the settlement agreement on February 7, or what if anything the amendment will have to do with any of the other objections filed.

Does not affect Feb. 5 public hearing about 66 units in Annandale

It is worth noting that this does not affect the February 5 planning board meeting concerning the 66-unit development slated for the Old Beaverbrook Homestead in Annandale. That public hearing is still on. (Click here for more information.)

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Your last chance to protest 66 new housing units in Annandale

Shhh…!

Monday, February 5, 7:00 pm (at the Clinton Township Public Safety Building, where council and planning board meetings are held) is your last and only chance to protest, comment on, or ask questions about the 66-unit high-rise affordable housing development the mayor has promised to build on Beaver Ave. next to the firehouse in Annandale. This will be built near Foxfire off Austin Hill Road.

The planning board is required under law to let you speak. Here’s the meeting agenda.

Campaign promises

Some who live near the development site have said on Facebook that when Mayor Higgins went door to door last fall to campaign, he “explained” this 66-unit high-rise development on the Old Beaverbrook Homestead. But he did not tell voters about the extra 400 units he’s going to build just up the road at Headley Farm.

This is your chance to organize your neighbors and turn out to address the planning board about the 66 units. At this meeting, the planning board will hear public comment, then vote on the final site plan approval.

Once they vote to approve the final site plan, there’s no more opportunity for public input.

What you can ask about at the planning board meeting

On January 29 (this past Monday), at the last minute, the planning board asked the Clinton Township Environmental Commission (CTEC) to review the plans — specifically, the Environmental Impact Statement (EIS) for this project.

In just two days, the CTEC volunteers quickly turned this rush review around. (They don’t get paid.) The CTEC found loads of deficiencies in the plan.

The CTEC’s report dated January 31 concludes that:

“a decision for this project [should] be postponed until additional information is provided by the applicant in order for the CTEC to further advise the Planning Board of potential environmental impacts.”

For residents who want to protest approval of this housing project, this report makes a great roadmap to a postponement of the approval of the 66 units.

Except that the attorney sabotaged the public

Minutes after the CTEC report was delivered, planning board attorney Jonathan Drill quickly issued an e-mail to the planning board telling them to ignore it.

Drill claims the hurry-up CTEC review is too late because the planning board already appoved the applicant’s EIS a year and a half ago — June 6, 2016!

But the planning board never asked the CTEC to review the plans in 2016, never showed CTEC the plans at all until earlier this week.

Why not?

You can ask if you show up.

Is the fix in?

Virtually ever aspect of the affordable housing settlement agreement signed by Mayor Higgins screams there’s hanky-panky going on.

What’s most interesting about the deficiencies the CTEC found in the EIS for the site is this:

“A C1 stream runs through the northern portion of the Site along with its associated wetlands. There is no discussion in the EIS on the impacts to the hydrology, and subsequently the wetlands, from the construction and placement of 18,700+ square feet of impervious surface.”

Over 10 years ago, the presence of a C1 stream is what killed Pulte Homes’ Windy Acres project.

Is this a done deal?

This project is not a done deal until the public gets its say during the public hearing next Monday at 7:00 pm.

If you live on Austin Hill Road, in Foxfire, in Annandale, or anywhere else in town and something about this 66-unit high-rise project doesn’t seem right to you, this is your last chance.

Some of the deficiencies the CTEC report hands you on a silver platter for public comment (CTEC is very thorough):

  • No discussion of traffic in the EIS as required by §165-72C(3)(h)
  • No discussion in the EIS of socio-economic impacts as required by §165-72C(3)(i)
  • No discussion of artificial lighting as required by §165-72C(3)(k)
  • No discussion of the impacts of building on steep slopes (15-25%)
  • No Phase I Environmental Site Assessment was provided to the CTEC, that
    would identify underground storage tanks (USTs) (e.g., diesel fuel, gasoline), farm
    dumps (such as the conditions at Windy Acres) and other environmental hazards
    associated with a historic farming operation such as pesticides or with historic buildings such as lead-based paint and/or asbestos.
  • And loads more. The CTEC is very thorough.

According to attorney Drill, the planning board already waived all of that in 2016.

You can ask why, and you can protest that it’s wrong to ignore all those deficiencies.

We did just that in 2005. That’s how we killed Windy Acres. You may not want to “kill” this project, but you can demand that all the critical deficiencies the CTEC found should be addressed.

Otherwise, why did Drill and the planning board waste the CTEC volunteers’ valuable time on this rush EIS review?

Where was the mayor’s announcement in the CT newsletter?

Is it funny the mayor didn’t write a letter in the last CT Newsletter to announce this critical meeting? And to invite all to come participate?

It seems the problem is, You didn’t call Mayor John Higgins on the phone to have a private discussion about this matter.

Like loads of missing planning board minutes, you won’t find the official CTEC report anywhere on the Clinton Township website. You’ll find it here.

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Clinton Township violates Sunshine Law, interferes with affordable housing fairness hearing

opmaAccording to a January 29, 2018 violations notice issued to Clinton Township by attorney Walter N. Luers on behalf of exMayor.com, the township violated the law throughout 2017 by failing to provide minutes of its planning board meetings.

The New Jersey Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6, et seq., also known as the Sunshine Law, requires that any “public body” that holds a “meeting” “shall keep reasonably comprehensible minutes of all its meetings . . . which shall be promptly available to the public.” (See sidebar below.)

Sunshine Law Violations

The planning board conducted 13 meetings in 2017. Minutes are available for only six of those meetings. In addition, according to the township’s website there are no minutes from some meetings as far back as August, 2016. (See graphic.) While audio recordings of some, but not all, meetings are posted, the Sunshine Law requires minutes.

Why does this matter?

A Fairness Hearing has been scheduled in Superior Court by Judge Thomas C. Miller for February 12, to hear objections from the public about the township’s settlement agreement with the Fair Share Housing Center (FSHC). In preparing filings, on January 15, 2018 exMayor.com filed an Open Public Records Act (OPRA) request for minutes of nine Planning Board meetings conducted in 2017. The township delivered minutes for only two of those meetings.

The township clerk responded that a meeting “record does not exist” for six of the meetings, including meetings from over a year ago, and that “drafted” minutes from one meeting are “not yet approved” by the planning board and “so are being withheld.”

That’s a violation of the Sunshine Law.

Also known as “The Sunshine Law,” the New Jersey Open Public Meetings Act ensures that the public has access to the business of government. The Law requires public bodies to provide the public with: (a) adequate advance notice of all its meetings, (b) the right to attend its meetings, and (c) reasonable comprehensive minutes of all its meetings “which shall be promptly available to the public.” (See What Is The Open Public Meetings Act?)

Enforcement action may be taken

Attorney Luers stated in his letter to the township that:

“While there is no bright line rule about how many days or weeks constitutes ‘prompt’ disclosure, I am highly confident that no court would hold that a delay of several months constitutes ‘promptly.’”

Luers notified the township that if it does not correct the violations immediately and produce the missing minutes, enforcement may be pursued through remedies available under the Act.

Interference with Fairness Hearing

While the law requires any “public body” to always keep minutes of meetings and to make them “promptly available to the public,” in this case Clinton Township has interfered with the public’s right to participate in the upcoming fairness hearing in Superior Court regarding its settlement agreement with the Fair Share Housing Center.

exMayor.com has put the township on notice that:

“[its]…obvious violations of the Act… are prejudicing the ability of both Mr. Corcodilos and the public to participate meaningfully in the February 12, 2018 fairness hearing currently scheduled in In re Township of Clinton Compliance with Third Round Mount Laurel Affordable Housing Obligation, Docket No. HNT-L-000315-15.”

Several of the planning board meetings about which the township admits “record does not exist” — including a closed session from which the public was barred — pertained to matters directly or indirectly (who knows?) relating to the settlement agreement. Without legally-guaranteed access to those minutes, who can properly prepare comments for the Court?

Will the judge permit the Fairness Hearing to be held?

If you wanted to file comments or an objection with the Court, it was due yesterday,  January 29. If you needed planning board records to produce your Court filing, you were out of luck. Actually, Mayor Higgins and the council are out of luck — because they violated your rights under the law.

How can Judge Miller permit the proceedings to take place on February 12 if citizens were denied their rightful access to public records they may need to participate?

What’s the township hiding in the missing minutes?

Council meeting minutes are readily available on the township’s website for all of 2017. But key planning board minutes, where some of the affordable housing sites were discussed, are missing. It seems the township staff is perfectly able to produce some minutes, but not others.

Why?

According to available agendas from those meetings, the topics relevant to the fairness hearing include:

  • “pending litigation, specifically, the Clinton Township Third Round Affordable Housing Declaratory Judgement Action”
  • CRC Communities, which is one of the affordable housing sites designated in the settlement
  • Ingerman Development Co, LLC, one of the affordable housing sites
  • “Letter dated October 30, 2017 from Katharine A. Coffey, Esq., re: Ingerman”

Of special concern are missing minutes from a March 20, 2017 meeting to discuss “pending Mount Laurel Declaratory Judgment litigation” and a August 21, 2017 “Joint Special Meeting of the Mayor and Council and the Planning Board” to discuss “pending litigation, specifically, the Clinton Township Third Round Affordable Housing Declaratory Judgement Action.”

Attorney Luers raised this specific issue in his letter::

“In addition, we are also concerned about the joint closed meeting between the Planning Board and the Township Council on August 21, 2017. It is not clear to me what exception under the Act permits two governing bodies that have separate responsibilities from meeting together while excluding the public. And, here, in the absence of minutes, the public cannot even guess what would justify such a meeting.

Is the township intentionally hiding its business?

Mayor John Higgins and the council avoided telling the public about their affordable housing settlement until after they signed it, so the public had no chance to ask questions, make comments or voice objections in their own council chamber.

Instead, these officials set it up so residents have to drive to Somerville to tell it to a Superior Court judge — after making even that harder by requiring objectors to submit their comments in writing two weeks in advance.

But now it’s evident that the mayor and council made it even harder for concerned residents to prepare written objections for the Court — by illegally withholding minutes of planning board meetings going back well over a year, in violation of the Sunshine Law.

At this point, it’s difficult to assume anything but that the mayor and council are intentionally violating the law to hide something and to illegally lock Clinton Township residents out of a fair and open process.

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Windy Acres: The fatal fraud in Clinton Township’s affordable housing scheme

Clinton Township’s affordable housing settlement with the Fair Share Housing Center hinges on all the seven projects within it delivering the number of housing units Mayor John Higgins and the council have agreed to. If any one of the sites fails, Clinton Township will face massive penalties and contingencies defined in the plan:

  • High-density (10+ units per acre) re-zoning of any other properties necessary to deliver the units promised;
  • The “need” to use litigation to sue Readington, Lebanon, Town of Clinton, and the Readington Lebanon Sewer Authority (RLSA) to force them to provide water and sewer capacity;
  • Spending any municipal funds necessary to deliver the units promised — think massive bonding;
  • And much more.

(Interestingly, other towns that are in similar negotiations with FSHC have not agreed to the onerous 10+ units per acre zoning penalty. Only Clinton Township.)

Windy Acres: The 2-decade fraud

There’s always been a fraud in Clinton Township’s affordable housing plans, since Pulte Homes tried to build 1,165 housing units on Windy Acres — then fewer, then fewer still, because Pulte could not come up with the sewer capacity.

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No one has ever been able to sewer the Windy Acres site — the old, bigger version, or the new, smaller version. Without sewer service, Windy Acres does not qualify to be in an affordable housing plan. And everyone knows this because it’s all over the public record.

Pulte tried and gave up

Pulte Homes, one of the biggest developers in the U.S., lost its shirt because it could not sewer Windy Acres.

Desperate, Pulte sued the RLSA. It lost. See “Appeals Court Upholds dismissal of Pulte lawsuit.”

Desperate, Pulte sued Clinton Township. After Mayor Tom Borkowski and his lawyers tried to settle with Pulte — to avoid hundreds of millions of dollars in damages, said Borkowski again and again — Clinton Township finally hired a powerhouse commercial litigator that brought Pulte to its knees.

After over a decade of trying to sewer Windy Acres, Pulte gave up. Amidst reports that Pulte put between $25M-$30M into Windy Acres, it finally sold the land to Clinton Township for $7 million.

Politicians tried and failed

Every affordable housing plan involving Windy Acres — including the one put forth by councilmen Jim Imbriaco, Peter Marra and Spencer Peck in 2010 — failed because no one could procure sewer capacity for the site.

News articles memorialized the fatal problems with sewers for even the smaller version of Windy Acres, which has nonetheless been put back into Clinton Township’s plans today. See “Affordable housing plan opposed by Clinton Township citizen’s group.”

“… litigation… ultimately resulted in the abandonment of a prior plan by Pulte Homes in 2004 to build affordable housing on the Windy Acres site because it ‘did not provide a realistic opportunity to deliver affordable housing.’ There was no access to water or sewer. This hasn’t changed, but the township owns the property.” – The Hunterdon Review, Nov. 4, 2010

Everybody knows

The reasons why Windy Acres cannot be included in an affordable housing plan are simple, and they have been written into the public record for many years.

  • The cost to build an on-site sewer treatment plant is cost-prohibitive. Even Pulte gave up.
  • Off-site sewer service would require connection to the Readington-Lebanon Sewer Authority’s system. RLSA has confirmed again and again that it will not provide sewer capacity.

Mayor Higgins and the current council know this, which makes it all the more shocking that they continue to pretend Windy Acres is a “realistic” affordable housing site. The inclusion of Windy Acres in the township’s affordable housing plans was always a political scam. Putting Windy Acres into the plan exposes Clinton Township to years of litigation — as it has in the past.

When 25 acres of the original Windy Acres property were subdivided for potential affordable housing, it was with the sober vision that at some far-distant time, sewer capacity might be had, and at a reasonable cost. But nowhere in the foreseeable future.

Until Mayor John  Higgins came along and tried the scam all over again.

Why is Windy Acres a scam?

There are two well-documented reasons why Windy Acres cannot realistically be sewered.

Building a new sewer system on the site is prohibitively expensive.

Why? Because of the Category-1 stream on the original 292-acre Windy Acres. The stream is still there. Effluent from a sewer plant into Category-1 waters may not degrade the quality of the water. A C-1 waterway is so pristeen that trout breed and grow in it. Effluent from a plant would have to be of equal or higher quality than the stream water itself. If the technology exists to accomplish this, Pulte found it prohibitively expensive, and it remains so. Township professionals have testified that, statistically, any such plant would be likely to trigger DEP violations because no one can guarantee its effluent will not contaminate the stream.

Sewer service from the RLSA does not exist.

According to the RLSA, there has not been capacity available in its system for Windy Acres. Just as important, Windy Acres is not in the RLSA sewer service area (SSA). Pulte attempted to sue RLSA capacity holders several years ago in Superior Court. Lawyers from 12 capacity owners showed up — some from major corporations — and the judges all but laughed Pulte out of court. The court ruled that Pulte could not take an asset from its owners. Thus, a connection to the RLSA has not been a viable legal option. But that doesn’t prevent anyone from suing the RLSA again — a contingency included in the settlement agreement signed by Clinton Township.

Every plan has been a fraud

Regardless, several iterations of politicians — with the support of township attorneys — have tried to put Windy Acres in the township’s affordable housing plan in a game of Russian roulette. Every plan has pretended Windy Acres could be sewered within the time constraints required. Every plan was revealed to be a fraud.

This public testimony, presented in March 2015 when Mayor Higgins added Windy Acres into the last iteration of Clinton Township’s affordable housing plan, reveals the history of sewer failure for Windy Acres. It also showed once again, in 2015, why Higgins’ inclusion of Windy Acres was yet another scam.

(This is 12 minutes excerpted from the official Planning Board recording of the March 16, 2015 meeting, where sworn testimony was taken on the township’s latest affordable housing plan. The audio is noisy but understandable. The recording is not available on the township website. It was obtained under OPRA request.)

The new fraud

Windy Acres is now included in the Fair Share Housing Center settlement agreement, and is to include 89 municipally-built affordable housing units.

Mayor Higgins heard the testimony above in 2015. Nonetheless, he included Windy Acres in the plan. He testified that he seemed to have special information that Readington would not reject a request for sewer capacity for Windy Acres.

“We have had past conversations with officials in Readington who indicated that their ordinance does provide a, um, priority for affordable housing projects within their township, and they might, they may see it the same way for an affordable housing project adjacent to the township. Lots of work to be done but, um, it is not a foregone conclusion at this point in time that that sewerage would not be forthcoming.”

Clearly, Mayor Higgins had not had any conversations with Readington or the RLSA about getting sewer capacity. Readington officials had already provided a statement to the Clinton Township Community Coalition stating that “Readington’s sewer capacity is all allocated and therefore there is none available at this time.” Higgins didn’t know that because he had not, in fact, bothered to speak to Readington about it — even as he advanced his theory.

Almost three years later, at the time of this publication, Readington’s position is that it has no available capacity for Clinton Township.

Higgins still put Windy Acres in his plan.

What happened between 2015 and today? Nothing.

In spite of information and testimony provided in March 2015, Clinton Township included the fraudulent Windy Acres in its affordable housing plan — yet again.

Today, Higgins has signed a deal binding the town to build 89 affordable housing units on Windy Acres, and to provide sewer for them.

Since 2015, Mayor Higgins and his administration have done absolutely nothing to develop on-site sewer capacity for Windy Acres, or to do the “lots of work” he promised to obtain sewer capacity from Readington.

Said Higgins in 2015:

“…it is not a foregone conclusion at this point in time that that sewerage would not be forthcoming [from Readington].”

Three years later, can Clinton Township residents say, FRAUD!?

What happens when the fraud is exposed?

The agreement Higgins signed spells out what he has also agreed to if he still can’t get sewers to build Windy Acres:

And, “if needed,” Higgins has agreed to sue to obtain sewer and water capacity:

The Clinton Township lawyer who included this clause cleverly defined later in the agreement exactly where that sewer capacity is, and who’s going to get sued: Readington, Lebanon, and the RLSA:

Could this have been avoided?

Maybe. If Mayor John Higgins and the Council had handled the settlement deal transparently and disclosed it to the public in advance, and invited the public to review, comment on and provide input it — before Higgins signed this fatally flawed deal.

Maybe some smart residents would have seen these problems and alerted the mayor to them.

The mayor invites you to a public hearing at NHHS about the settlement!

In 2005, when Clinton Township contemplated a similar affordable housing settlement agreement with Pulte Homes, Mayor Tom Borkowski convened a special public meeting at North Hunterdon High School. Hundreds turned out and gave their input.

“We want the public to come out and see it and partciaipte,” said Borkowski in a May 5, 2005 Hunterdon Democrat article. “We’re hoping for a big turnout.”

Not this mayor. Not John Higgins. Not council members Brian Mullay, Amy Switlyk, Dan McTiernan and Tom Kochanowski. According to an official involved with the FSHC settlement who is not authorized to speak about the matter publicly, a township attorney advised officials not to present the settlement deal to the public before voting on it.

The public isn’t qualified to partcipate

But Mayor Higgins doesn’t think much of the public’s qualifications to help with government. Here’s what he said at a recent Hunterdon County Freeholder meeting about another land-use matter that would have benefited from public input:

“I don’t know very many people in the township that have enough knowledge of … our land use ordinances to provide any real meaningful criticism or meaningful suggestions on how to improve them.” – Mayor John Higgins, Sept. 5, 2017, Freeholder Meeting

(More about that freeholder meeting was reported by TAPInto Flemington-Raritan.)

Later, at the January 3, 2018 Clinton Township Council meeting, Higgins was asked whether he really believes that’s true:

“Mmm-hmm… that’s correct…”

Without meaningful input from the public, the fatal Windy Acres affordable housing fraud has been allowed to make its way into a contract that binds residents as well as future mayors and councils.

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The litigation will begin when Clinton Township cannot fulfill the terms of the FSHC settlement agreement because Windy Acres cannot be sewered on time, as promised.

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Mayor’s #1 affordable housing builder has “unusual” problems

affordable

Clinton Township Mayor John Higgin’s #1 designated affordable housing builder, CRC Communities, Inc., has a 12-year history of “unusual” problems with its two stalled Clinton Township projects (both of which are included in the settlement deal), according to Clinton Township planning board records.

CRC is one of two named developers in a massive settlement deal that was never disclosed to the public before it was approved and signed. (See Mayor Higgins’ 51-second, 805 housing-unit massacre.)

The CRC problems described in planning board documents include N.J. DEP water-quality regulation “errors,” “duplicative” work, surveying problems, a Category-1 stream missing from plans, apparent violations of DEP wetlands rules on official plans, questions about its consultants and project engineers, and questions about management practices.

The CRC website lists no address for the company, no names of owners, principals, or contacts. The only contact information is a 732 area-code telephone number and a generic “info” e-mail address. A page describing “Some of Our Recently Completed Communities” includes eight named housing developments, but Google searches turn up no such “recently completed” developments.

Problems since 2005

It seems Mayor Higgins and the council are impressed with CRC’s record at the planning board over the past 12 years. (“In December of 2005 CRC submitted a Preliminary Subdivision application…”) That’s how long CRC has been planning to construct 19, then 16 homes at Longview Manor, a 170-acre property, according to planning board records.

From the June 5, 2017 Clinton Township Planning Board Meeting Minutes:

During and after the preliminary subdivision process, CRC encountered an unusual number of engineering and surveying issues, including:

  • Four of CRC’s consultants went out of business resulting in duplicative and expensive plan preparation.
  • Due to errors by the original engineer and environmental consultant, the existence of an off-tract C-1 stream, which required a 300-foot stream buffer to be located on the Longview Manor property, was not revealed until after the subdivision had been fully engineered and approved.
  • Additional engineering errors showed a 50-foot wetlands transition area where a 150-foot wetlands transition area was required by DEP letter of interpretation.
  • Surveying errors were discovered after discussions with the Hunterdon County Planning Board.
  • A second aquifer test and report had to be done by a new hydrogeologist due to issues that could not be resolved by the original hydrogeologist.
  • CRC had to engage in extended negotiation with the Hunterdon County Engineer’s office due to that agency’s insistence on extensive frontage improvements along Cokesbury Road. These frontage improvements would have violated the 2007 Litigation Settlement Agreement and required unobtainable DEP permits for disturbance of wetlands, wetlands transition areas and stormwater resource protection area buffers.

In spite of this litany of “unusual” problems, the planning board unanimously approved CRC’s request for a 4th extension of its approvals — just months before CRC was included in the township’s affordable housing settlement as the #1 developer, in terms of number of units to be constructed.

Higgins’ #1 affordable housing developer gets a 700% bonus

Under the secretive settlement deal signed by Higgins on December 13, 2017, CRC’s two properties constitute the biggest affordable housing project undertaken in Clinton Township’s history. CRC is listed as the developer of 416 of the 805 total new housing units to be constructed. (See Mayor Higgins’ 51-second, 805 housing-unit massacre.)

Only 105 of the 416 CRC units are actually affordable housing units. The rest are “bonus” market-priced units granted to CRC by the agreement. Clinton Township does not need the 311 market units in order to satisfy its legal obligation to build affordable housing.

According to the settlement agreement, Higgins and the council have granted CRC the right to build 311 market-priced housing units in exchange for building the 105 affordables, on the same two properties where CRC has approvals for just 36 market units — Longview Manor and Headley Farm Estate. That’s an instant 700% increase in CRC’s housing yield on the same properties where it has not yet been able to build a house.

4 extensions of approvals

Last June, CRC applied for one of many extensions on its Longview approvals, “due to its inability to proceed due to detrimental local and state housing market conditions.”

After granting “two one-year extensions of the preliminary subdivision approval, the second extension expiring on November 16, 2014,” the planning board “granted a three-year extension expiring November 16, 2017.”

Having enumerated the “unusual” problems on the Longview site, and after enumerating the three approval extensions granted since 2012, on June 5, 2017 the planning board approved a fourth extension.

Now the mayor and council have granted CRC hundreds of housing units and more time to construct them. What did CRC do to earn re-zoning of its properties and a 700% yield bonus?

7 sites but only 2 developers named

There are seven new “affordable” developments designated on seven sites in the township, but only two developers are identified in the agreement: CRC and Ingerman, which is named to build the 66 affordable-only project at the Old Beaverbrook Homestead. According to its website, Ingerman is a family-run developer based in Collingwood, NJ. Its management team is presented on its website.

Why CRC?

According to an article by Mayor John Higgins in the January 2018 edition of the Clinton Township Newsletter, CRC, Ingerman and other undisclosed developers were chosen by the council and the planning board behind closed doors, in “executive session.”

To date, Higgins has not disclosed who the other developers are. They are not disclosed in the settlement agreement, even though it binds the township to deliver all the housing units described on the seven sites — or face stiff penalties.

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To date, Higgins has not disclosed what criteria were used, how or whether due diligence was done, and why a developer with CRC’s record was chosen to undertake the biggest housing construction project in Clinton Township since Beaverbrook — and the township’s biggest affordable housing project ever.

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Mayor Higgins’ 51-second, 805 housing-unit massacre

How long does it take to add 805 new housing units to Clinton Township, if the mayor and council don’t tell anyone they’re doing it?

How long does it take to add 400 new housing units just in the tiny Village of Annandale?

Check related articles in Recent Posts section at right.
How long does it take to massacre the character of semi-rural Clinton Township with Mayor John Higgins’ new policy of Bring On The Sprawl! — without a word of warning to the public?

The 51-second massacre

On Dec. 13, 2017, at the last Clinton Township council meeting of the year, in the last minute of the meeting, Mayor John Higgins — who just got re-elected — and the council took exactly 51 seconds to vote to sign a legal settlement deal with the Fair Share Housing Center (FSHC) obligating the town to add 805 new housing units at any cost necessary to Clinton Township.

(The full recording of the meeting is available on the Clinton Township website, but there is no mention of the settlement deal until the very end of the recording.)

No details about the deal were ever discussed in public.

“I didn’t.”

At the January 3, 2018 meeting, Mayor Higgins was asked:

“When did you present this settlement agreement to the public in any meaningful detail prior to taking action on December 13?”

Higgins answered, very softly:

“I didn’t.”

That’s not how open, transparent government is supposed to work.

How many new housing units?

Under State law, like other New Jersey municipalities, Clinton Township has an obligation to provide a certain number of affordable housing units.

Under the FSHC settlement deal, the Township has agreed to provide 373 actual, new affordable housing units, above and beyond any affordables it has already earned credit for. That’s supposed to settle the obligation without any extra housing the Township doesn’t don’t need or want.

To put 373 housing units in perspective, The Mews in Annandale, behind Cryan’s Tavern, is 221 units.

The Mews — An “inclusionary” development. 221 housing units, Only 35 are affordable.

So why did Higgins and his council sign up for 809 new units?

Smart towns avoid inclusionary sprawl

For the past decade, New Jersey towns have diligently focused on building their own municipal affordable units, usually in cooperation with a special affordable-housing builder who builds just those units and nothing more.

Previously, towns got suckered into letting commercial housing developers — think Hovnanian, Pulte — build their affordable units. Such inclusionary developments require towns to give a bonus to those developers. For every affordable unit they build, the developers are allowed to build 4 or 5 more units of market-priced housing. That’s 80% market and 20% affordable.

(The Mews is a >5:1 market:affordable development put up by Charles Kushner, who later went to jail. Yes, that Kushner — the father.)

Clearly, that kind of deal sucks for a town. But it’s actually worse. To provide that kind of unit yield to the developer, it often means re-zoning a property that might be allowed to have just one house on 5 acres to accommodate 50 housing units on the same land.

You get the idea — such inclusionary  developments are where sprawl comes from.

It’s what previous mayors for the past 10 years have fought hard to avoid. So why did Mayor Higgins and the council sign a deal to add 805 new housing units when all we need to satisfy our obligation is 373?

Protecting Clinton Township?

While the mayor has published a statement and a FAQ about the settlement deal, the truth and details are buried in the settlement agreement itself.

Here’s what Higgins wrote in his statement about how his “settlement deal” is going to protect his town:

Oops! Higgins said he was avoiding deals that slam Clinton Township with 4 market units for 1 affordable, but it’s exactly what this deal does. The deal sneaks in hundreds of market housing units Clinton Township doesn’t need.

The 809-unit massacre

Here are the numbers, which can be found on the indicated pages of the settlement agreement.

The Truth: 4X and 5X more housing than Clinton Township needs

Clinton Township needs 373 new affordable units. The mayor’s “FAQ” does not answer this question, which will be asked frequently: How come you agreed to 809 new units?

  • The developer of the CRC Longview and CRC Headley Farm projects, where the township needs 105 affordable units, gives the developer 75% market units — or 311 market units. That’s housing almost 2.5 times the size of The Mews — market housing Clinton Township doesn’t need. These brand new 416 units will be tucked up in Annandale, right above The Mews.

The Headley Farm site was previously approved for only 21 units. Now it’s 400+.

  • The developer of Alton Place gets a bonus of 110 market units for 28 affordables, a 4:1 ratio, for a total of 138 new units.

Wait a minute — Higgins said he’s “protecting” the township from “80% market” and “20% affordable” deals!

Wait a minute — hasn’t Clinton Township already done this before? Yep: John Higgins is paying tribute to Marra & Imbriaco: The Windygate Legacy.

Mayor Higgins isn’t “protecting” Clinton Township against developers. He’s just making it easier for them. They don’t have to bother suing Clinton Township for a “builder’s remedy” — Higgins is handing it to them.

Shhh…

But Mayor Higgins and the council didn’t breathe a word about the deal to the public before executing it.

At a recent Hunterdon Freeholder meeting, Higgins complained developers have it too hard. He said it’s important to consider the “viewpoint of the developer.”

Higgins said towns need to make development easier for developers:

“Where do they run into roadblocks? Where have we cost developers time and money?”

The deal that council members Higgins, Brian Mullay, Amy Switlyk, Dan McTiernan and newcomer Tom Kochanowski approved sure helps developers.

The deal Higgins touted last week at the Republican Club meeting, and in private to his supporters, has not been fully disclosed in any council meeting, nor has the council taken comments from the public.

But it sure helps developers.

Higgins To Residents: You can all go to…

In his written statements, Higgins has informed Clinton Township residents that on February 12 they can drive to the New Jersey Superior Court in Somerset County if they want to comment on or object to the 809 housing-unit massacre that will fulfill Clinton Township’s negotiated obligation to provide 373 affordable housing units.

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But first you have to submit written comments to the Court no later than January 29, if you want to qualify to speak to the judges on February 12.

There’s no indication whether Higgins, Mullay, Switlyk, McTiernan and Kochanowski will be on hand to respond to you.

That’s your government in action — serving you!

The “FAQ” and the “Statement” don’t begin to tell the whole story about the extreme penalties Clinton Township has agreed to swallow.

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Freeholder candidate Van Doren admits role in govt data breach

“They weighed about 40 pounds apiece.” said Tewksbury Township Committeeman Peter Melick about two boxes of confidential municipal personnel files he and someone else carried out of the government building on April 27, 2017. It was the biggest government record data breach in Tewksbury’s history.

After helping engineer the removal of the records, Committeeman Shaun Van Doren, a candidate for Hunterdon County Freeholder in the November 8, 2017 election, admitted afterwards:

“In hindsight was it the appropriate thing to do? No it wasn’t.”

Van Doren added:

“It came out of the conversation that occurred, there wasn’t any intent, there wasn’t anything nefarious.”

Peter Melick explains it

“Well, I can explain the whole thing,” Melick stated at the May 16, 2017 Committee meeting where Van Doren made the statements cited above. “Shaun and I met with Jess, I forget the exact date, just prior to his leaving.” That’s town Administrator Jesse Landon he was referring to.

According to statements of Tewksbury officials on the audio recording of that public meeting (scroll down to end for full recording), Van Doren, Melick, Landon and town attorney Michael Selvaggi were responsible for the biggest breach of government data in Tewksbury’s history.

The justification

Why did they plan and execute removal of all the private personnel files of all Tewksbury employees past and current? How did they justify it?

It was Landon’s last day at work. He had resigned his post on March 24, right after an “Internal Investigation” was completed. (See “Tewksbury residents angry over moved files,” Hunterdon Review, for details.)

Melick and Van Doren explained that, with the Administrator leaving his job for good that day, there was no one to keep the personnel records secure.

“…we didn’t want to leave them in a place where anybody coming in could look at anybody else’s personnel file and you’d have accusations of that nature. That’s what we’re trying to guard against,” said Melick.

“The custodian of the records is the clerk, no matter whether you have an administrator or don’t have one. Any records that the town has, especially personnel records, they should be keeping at the municipal building, or at the location where they keep their records, not in someone’s personal possession. Nothing should be taken off site.” – Joel Popkin, Executive Director, NJ Clerk’s Association

But Tewksbury’s long-time Clerk, Roberta Brassard, was present that day. According to New Jersey statute, she’s the custodian of records. Apparently the Gang of 4 never thought of that. They reportedly never consulted her.

There was no reason to remove the files to secure them. Their legal custodian was Brassard.

N.J.S.A. 40A:9-133.e.: “The municipal clerk shall: (1) act as secretary of the municipal corporation and custodian of the municipal seal and of all minutes, books, deeds, bonds, contracts, and archival records of the municipal corporation…”

They remove the files to Melick’s home

The point was to move the files where no one would be able to peek at anyone else’s confidential personnel file. So they moved them to Melick’s home.

Said Melick:

“Jess said there was no key for personnel filing cabinet. So I said what are we going to do with them. So because I’m around during the day he said, well, I’ll call you or whatever. I said call Dana [Desiderio] because she’s the mayor. She was away so she couldn’t do it. So I said I’ll take them and secure them in my office… my home office, business office.”

Van Doren to Melick: “Why don’t you take them?”

Said Van Doren:

“I didn’t authorize him to do it.”

But Van Doren also said:

“We had a discussion and I trust the concern that if the office is going to need to be left open so that employees could get access to other files they needed, that they didn’t have access to those files. That was when it came up in the conversation, well why don’t you take them and hold them until the appropriate time when they could be transferred to his successor. In hindsight was it the appropriate thing to do? No it wasn’t. It came out of the conversation that occurred, there wasn’t any intent, there wasn’t anything nefarious.”

The Gang

Jesse Landon, a seasoned professional, has (according to his resume) a Master of Public Administration from Fairleigh Dickinson University. He’s a Graduate Fellow at the Public Administration Institute and is affiliated with the New Jersey Municipal Management Association. He was Tewksbury’s Administrator for over 17 years.

Landon is clearly someone who knows the law and the rules about municipal records.

Peter Melick is a scion of the Melick family, whose father, George Melick, is renowned as the longest-serving freeholder in New Jersey history. Peter Melick has been tutored in politics and government all his life. He is also an experienced Committee member of almost a decade.

Shaun Van Doren has served on the Committee for 20 years and. He  was tapped by Patrick Torpey, Chairman of the Hunterdon Republican Committee, to run unopposed for freeholder in the June Primary. Van Doren is on the ballot for the November 8 election.

These two seasoned elected public officials surely know the law and the rules about government records.

Files were turned over by Landon

Yet Melick and Van Doren justified a government record data breach, and stood by as Landon did something that doesn’t seem to make  sense. To enable the removal 80 pounds of Tewksbury personnel files that were in Administrator Landon custody, Landon wrote a memo to the Committee which he had Melick sign.

Landon officially turned the records over to Melick. (Complete memo.)

Authorized by the attorney

“So I called Michael [Selvaggi], our attorney, told him what we were doing. He said okay so I took them.” – Peter Melick

(Attorney Michael Selvaggi said later that he “misunderstood.” He didn’t realize “all of the personnel files were going to be carted out.” He thought he was giving the okay to remove just one personnel record.)

Melick signed for receipt of the records at “14:47 hours” on April 27 and admitted he moved them down to his vehicle. He claims he drove them to his “home office, business office.” Yet at the October 10 Committee meeting, no one could provide any proof about where Melick went, or about his claim that he did not open the boxes.

No official authorization

At the May 16 Committee meeting, everyone admitted that no one but attorney Selvaggi gave any authorization to remove the personnel records:

Mayor Dana Desiderio: “I didn’t tell him to give the files to anyone.”

Asked if the Committee as a whole gave authorization, Deputy Mayor Louis DiMare said: “For the record, I don’t think we did.”

Shaun Van Doren: “I didn’t authorize him to do it.”

N.J.S.A. 2C:28-7, “Tampering with public records or information,” states: “A person commits an offense if he:… (3) Purposely and unlawfully… removes… or otherwise impairs the verity or availability of any such record, document or thing.”

What happened to the files?

What happened to the files is a long story that was discussed at length at the October 10, 2017 Committee meeting, reported in the Hunterdon Review, October, 12, 2017, “Tewksbury residents angered over moved files.” (The article includes full audio of the proceedings.)

Committeeman Shaun Van Doren was noticeably absent from his own Committee meeting — the last public meeting prior to the Freeholder election. Questions were asked about his role in the data breach, but he wasn’t there to answer.

Allegedly — according to comments made by town officials — the files included a copy of the “Internal Investigation Report” produced by special counsel for the Committee. The report was allegedly placed in Landon’s personnel file — and the report and/or file were allegedly missing when the personnel records were returned to the municipal building.

According to a Tewksbury insider who spoke anonymously because they are not authorized to discuss the matter, the records that were removed — to Melick’s “home office” — included personnel files of Tewksbury police officers.

Van Doren gives Landon a bonus

Four months after Landon left his job, on July 11, 2017 the Tewksbury Committee considered a motion made by Shaun Van Doren — who with Melick is the Finance Committee — to authorize a “merit pay bonus” of 1% for all municipal employees, retroactive to cover 2016.

After a lengthy discussion, Mayor Dana Desiderio said she would vote to approve the bonuses only if Committeeman Van Doren, who made the motion, would modify his motion to “exclude Jess Landon” from the bonus payments. Van Doren refused and stridently argued that Landon was not terminated but resigned and deserved the bonus.

Desiderio voted against the measure and explained her vote:

“I don’t give credit for poor behavior.”

The measure passed 3-2 with DiMare also opposed.

What happened to the guy who turned over the records?

On February 22, 2017. just six days after Administrator Jesse Landon was interviewed by Tewksbury’s special investigator, the Clinton Township Council “authorized [Mayor John Higgins] to make an offer to Mr. Landon and draw up an employment letter.”

The offer was for the job of Administrator.

On February 27, 11 days after being interviewed by the investigator, and a month before the “Internal Investigation” in Tewksbury was completed, Landon was given a written job offer for the position of Township Administrator, signed by Clinton Township Mayor John Higgins, at a salary of $132,000, a $4,000 raise.

In a March 29, 2017 article, the Hunterdon Review reported:

Higgins said, “Mr. Landon understands how things work in Hunterdon County” and “He was a superior candidate. We’re very happy to have him on board.”

Clinton Township’s official Personnel Policy requires that:

“Applications for positions as advertised shall be made on forms supplied by the township and filed with the Municipal Clerk.”

An OPRA request filed with the Clinton Township Clerk for a copy of Landon’s job application was answered with a statement that no application exists.

What happened to Shaun Van Doren?

As noted above, Committeeman Shaun Van Doren is campaigning for a seat on the Hunterdon County Freeholder Board in the November 8 election.

Full meeting recording

This official recording was obtained from Tewksbury Township, which records but does not publish meeting recordings. Recordings may be obtained by filing a N.J. Open Public Records Act request.

It’s worth noting that the Freeholders do not publish their meeting recordings, either. Unlike Tewksbury, which maintains an archive of recordings, the Freeholders destroy their meeting recordings after 90 days.

That’s how things work as you move up the political ladder in Hunterdon County.

Key facts presented in this column would never have been discovered if Hunterdon’s municipalities destroyed their meeting recordings after 90 days like the Freeholders do.

One might say of Mr. Van Doren’s qualifications for Freeholder:

“Mr. Van Doren understands how things work in Hunterdon County.”

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