I had the opportunity to attend the recent Honeywell trial. I’m not a lawyer or a planner or a traffic expert. I’m a resident who’s followed the Honeywell situation closely. Here’s my view of what happened in the courtroom.
The trial was basically a battle between two expert witnesses: Mr. Steck – the planner who testified on behalf of the plaintiffs (the neighborhood group - C4BPMT) and Mr. Phillips – the planner for Morris Township (the defendants).
My pre-trial thought process went something like this: The Township is smart. They know the law. I’m sure they followed it to the letter. The plaintiffs are probably fighting a losing battle. Their chances of winning are slim. The odds are probably about 10 to 1 in favor of the Township.
By the end of the trial, my views had changed. Mr. Steck brought up some interesting and provocative points. My post-trial odds have shifted considerably. The judge made some shifts as well. At the beginning of the trial, he said he would need about 7 – 10 days to render his decision. At the end of the trial, he commented that there was a lot to consider. He said that after receiving the attorneys’ closing arguments (in writing) on Feb. 28, he would need about 30 days to render his decision.
Judge Hansbury struck me as a no-nonsense, detail-oriented, judicial expert. He will sort through every legal issue (and ambiguity) in light of every rule of law and of this trial. My impression is there’s a sea of legal detail for him to analyze. I can’t wait to read his conclusions and understand his reasoning!
The central issue in this case is spot zoning – i.e. zoning that’s developed for a single property. While the law does not encourage spot zoning (in part because it raises the specter of favoritism - hum), apparently the law does not prohibit spot zoning either. But it does specify guidelines for distinguishing legal vs. illegal spot zoning. That’s where that sea of legal detail comes in. Did the Township engage in illegal spot zoning? That was the central question in this trial.
To make this
determination, a key question is whether the Township considered the public
interest and protected the public welfare in ways the law deems “comprehensive”
and NOT “arbitrary, capricious, or unreasonable.” Hints about the legal definition of “comprehensive” can be
found in the 15 purposes cited in section 40:55D-2 of New Jersey’s Municipal
Land Use Law. Evaluating whether
the Township’s actions met the legal criteria of “comprehensive” will be a key
consideration for the judge - but not for me. Clearly, the Township’s actions were not “arbitrary and
capricious.” If anything, the
opposite was true. The main
question the trial stirred up for me is: Did the Township protect the public
interest in ways that are “reasonable?”
During his testimony, Mr. Phillips freely admitted that the zoning actions taken by the Township (amending the master plan, writing Ordinance 13C-12, and creating the PUD overlay zoning features) were specifically tailored for the Honeywell property. As such, he did not deny that the Township had engaged in spot zoning – i.e. zoning that is parcel-specific. But he did provide evidence for all the ways in which the Township had complied with the legal requirements for doing so.
TRAFFIC stood out to me as the Township’s greatest vulnerability in this case. I don’t know the legal definition of “reasonable,” but from a common sense perspective, the Township’s handling of traffic considerations did not seem very “reasonable” to me.
It’s clear that the proposed plan for the re-zone of the Honeywell property will result in an increase in traffic compared to current levels. Mr. Steck argued that the Township’s formula for determining a developer’s fair share contribution to funding needed upgrades at surrounding intersections is unenforceable - in part because the language is incomprehensible (it is) and in part because it’s based on convoluted reasoning espoused by the Township’s traffic expert about how to calculate the increase. I agree with this assessment.
In addition, these road improvements are dependent on contributions from jurisdictions that are outside the Township’s control – i.e. the county and the state. What if the county and the state refuse to contribute to these improvements? This scenario (widely recognized as likely) would leave our community in a position of incurring significant traffic increases at surrounding intersections and no way to deal with them effectively – if at all. As a member of the driving public, the Township’s plan for handling the traffic increase this re-zone is sure to create doesn’t feel “reasonable” to me.
It will be interesting to see what the judge decides.
Community Could Help
As I reflect on this trial in hindsight, I agree with something Mr. Phillips (the planner for Morris Township) mentioned repeatedly: Honeywell IS a unique property. It’s a large corporate campus that worked in the past but is no longer viable. Honeywell’s interest in changing this property’s use is legitimate and understandable. But figuring out what to do with a property like this raises unique challenges. The community at large has a much greater stake in the outcome of a property like Honeywell, and I believe the decision-making process ought to make room for community participation that is qualitatively different than usual. The opportunity to repeat the same testimony in the same public hearing format over and over for YEARS (instead of days or months) is not the kind of qualitative participation difference that’s needed. What could the Township have done instead?
The story of what happened in a similar situation - Bell Labs in Holmdel - is instructive. This property sat idle for years. Attempts to devise new uses failed. The game changer for this property was when the community was invited to participate in imagining new possibilities for its use.
Engaging this sort of community participation yielded many benefits: It re-framed the problem as a community issue and not just a private property decision. It led to a whole new set of ideas for creating a vibrant public space – ideas that had not been previously considered and are now being carried out - to the mutual benefit of all. It invited public buy-in for the project instead of activating public opposition to it. It acknowledged that in situations like this, the interests of the community overlap with the interests of the property owner in ways that are qualitatively different – indeed unique. As such, it recognized that the public rightfully deserved a stronger voice – a voice more equal to that of the property owner – in imagining use possibilities for this property at the outset.
What happened in the Honeywell situation (in my view) is that the Township imposed a traditional (highly legalistic) set of decision-making procedures on a non-traditional (and exceptionally contentious) set of presenting issues. I don’t know if the Township’s actions met every legal test (the judge will decide that), but from a conflict resolution perspective, I do believe the Township’s actions were misguided.
Although the Township clearly had its eye on creating a “state of the art” OUTCOME for this property, the problem is it neglected to utilize a “state of the art” PROCESS for getting there. It’s clear to me that the presenting circumstances of this case were crying out for the public to have a stronger voice, a voice more equal to Honeywell’s, in creating the initial package of use possibilities brought to the table in the first place. The traditional approach of allowing the community to comment at public hearings on the development plan proposed by the landowner is fine for most situations. But not this one.
What if the Township had followed the Bell Labs example and invited the community to collaborate with Honeywell in imagining ways to transform this property into a vibrant public space? Can you imagine??? I think chances are good that, as with Bell Labs, this single action would have been a game changer for the Honeywell property. At a minimum, this spot zoning lawsuit could probably have been avoided. Honeywell might even have stayed – to their benefit and to ours.
I believe the Township did its best to abide by the law and acted in good faith to protect the interests of the community. Its fatal flaw, in my view, was not to include some type of community visioning process at the outset. The Township’s decision to impose decision-making procedures based on a spot zoning approach (which includes no requirement for a community visioning component) may have been legal, but from a conflict resolution perspective, it wasn’t wise.
If the judge does rule against them, I hope the Township resists any temptation to appeal and instead chooses to lead a new and improved “do over” process on the re-zone of the Honeywell property. Forget about asking a judge to continue dissecting the fine points of legal vs. illegal spot zoning. Do what’s right. Move in the direction of enacting a state of the art resolution process. Begin with a community visioning process. My bet is the results would be amazing!