HOWELL – A Monmouth County Superior Court judge ordered township officials to turn over public records to a local resident who requested them more than a year ago.
Kathi Novak said she followed guidelines under the Open Public Records Act (“OPRA”) to secure a copy of a Developer’s Agreement referenced at the governing body’s September 14, 2021 meeting. The Township Council voted down the resolution approving execution of the agreement with 6461 Route 9, Howell, LLC for construction of the Fountains, an age-restricted residential project.
“I’ve lived in Howell for 38 years,” said Novak. “My interest was proximity to my own home and the fact that they (township officials) would not release the Developer’s Agreement before it was voted on. I felt like they were hiding something and didn’t want people to ask questions about it.”
Novak claimed that Joe Clark, in his capacity as township attorney, was adamant about his refusal to let anyone from the public see the agreement.
“He said that the only way I could get it is if the council voted and approved the agreement,” Novak added. “Then, it’s over – once they’ve approved it, there’s no time for questions because it’s a done deal.”
Attorney Walter Luers represented Novak in her lawsuit against the township and Dwayne M. Harris, in his capacity as municipal clerk and the township’s record custodian. Caitlan Harney, Esq. served as legal counsel for the township and Harris.
In a sixteen-page legal opinion, Judge Lisa P. Thorton included the relevant facts of the property in question that led to the OPRA request and subsequent lawsuit.
Issues with the developer date back to 2003 when Howell Township first made an agreement with MGD Holdings How, L.L.C. (currently 6461 Route 9 Howell, LLC). That dispute dealt with the developer’s objections to the township’s affordable housing plan. As part of the agreement, MGD Holdings agreed to limit its development.
The Planning Board considered and approved various preliminary plans in January 2017. The developer received Final Major Site Plan approval to build 100 residential units in four, four-story buildings in March 2018.
When the resolution to approve the Developer’s Agreement was brought to the Township Council on September 14, 2021, Judge Thorton said the meeting minutes indicated the governing body engaged in a “spirited” discussion.
According to Judge Thorton, members of the governing body expressly stated the reason they didn’t approve the Developer’s Agreement had nothing to do with the terms and conditions expressed in it. Instead, they objected to the development of the property, an issue that had been decided nearly two decades ago.
“The arguments were what drew me in, as the council was not unanimous on the vote on the developer’s agreement,” said Novak. “I wanted to see why they kept voting down the agreement and why Deputy Mayor Pamela Richmond said she was going to ‘play politics’ and vote with the Dems.”
Harney, representing the town and the town’s clerk, argued that the unsigned Developer’s Agreement should be characterized as a “draft document protected by the decisional process privilege” because it was drafted prior to the Township Council’s final decision.
Judge Thorton wrote that when the governing body voted at the September 14, 2021 meeting, the Developer’s Agreement was a final document that had been “prepared, reviewed and modified by the Township Attorney and Engineering Department and recommended for approval.”
After citing several reasons the document should have been provided under OPRA, Judge Thorton said it should have been disclosed under common law. Novak had a public interest in the Developer’s Agreement as a Howell resident.
The township was ordered to provide the Developer’s Agreement to Novak’s attorney and did so. However, a lot has changed since Novak first requested the document a year ago.
Representatives of 6461 Route 9, Howell, LLC sued the township last year for what they saw as attempts to thwart the project’s development. Howell was ordered to pay $130,353 as part of a settlement and authorize a Developer’s Agreement.
Howell not only incurred legal fees for its defense of Novak’s lawsuit. The court order also requires the township to pay the local resident’s attorney’s fees.
A request for comment submitted to Howell Township officials has not been answered as of press time.