Jackson considers options on pair of defeated laws
BY DAVE BENJAMIN
Staff Writer

JACKSON - Mayor Mark Seda is waiting for Township Attorney George R. Gilmore's recommendations on how to proceed in the aftermath of two court rulings that have gone against the town.

In both cases, court rulings have favored the Shore Builders Association of Central New Jersey in challenges it filed against local ordinances.

Seda said Gilmore is reviewing the latest court decisions.

One decision concerned a Jackson ordinance that required builders to set aside recreation/open space in developments they were constructing.

Papers filed in state Superior Court, Toms River, in June 2003 by attorney Paul Schneider, representing the builders association, asserted that Jackson's ordinance exceeded its authority under the Municipal Land Use Law. The main issue was how the term "open space" was defined and used. The papers also questioned Jackson's authority in the matter.

Jackson was operating under a Township Committee form of government at the time and Michael Kafton was

mayor. He said the plaintiffs were aiming to develop as much of Jackson as they could and the governing body's intention was to preserve as much of the municipality as possible.

In June 2004, then township attorney Kevin Starkey began making an attempt to negotiate a settlement after the court requested that an attempt be made to settle the litigation.

In January 2005, Schneider told state Superior Court Judge Eugene Serpentelli that Jackson was stalling the negotiations, while Starkey said there had only been one meeting. The case went to court and the court ruled in favor of the builders association.

Seda said officials will review the recreation/open space ordinance which required builders to set aside space in a development or pay a fee to the township.

"The attorney is looking to see if we can modify that ordinance to make it work or [if it will be necessary] to start over," he said.

According to the mayor, the way the ordinance was worded, a developer would have to build a large number of homes in order to achieve the recreation area that would be needed.

Kafton issued a press release in the wake of the court ruling and said, "The clock is ticking and the time to appeal is quickly expiring. This ordinance not only provided Jackson with parks, recreation areas and other open space, but it also saved taxpayers money by requiring builders to set aside or put money into a fund for open space/recreational facilities prior to obtaining approvals for housing developments in Jackson.

"We all know that builders profit quite nicely in Jackson and I, along with many others, feel that this ordinance provided a way for them to give back to our community," he said.

Kafton urged Seda and the Township Council to act immediately and redraft an ordinance that would require builders to provide for recreation and open space similar to an ordinance that was upheld by state Superior Court Judge Valerie H. Armstrong in a case involving Little Egg Harbor, or to appeal the ruling before the time to do so expires.

The second ordinance that the builders association successfully challenged required builders to replace trees that had been removed during the course of development. The ordinance was adopted in 2001.

Seda said he knew the ordinance was going to be a problem when he was on the Township Committee, based on the first denial.

As it turned out, state Superior Court Judge James D. Kline ruled that the ordinance was unenforceable for three reasons: Jackson failed to provide specific standards that all citizens could follow; the ordinance lacked appropriate limitations with regard to the use of money collected in the tree escrow fund; and the ordinance allowed the township to improperly discriminate against developers with no rational basis.

The township appealed the court's decision and lost.

Seda said he is planning to review the situation and see what can be done with the ordinance going forward.

"It does not have to be a complete redo, but I won't know that until the township attorney comes back with how the ruling affects the ordinance and what areas that we need to change," he said.