Princeton Council to Vote on Revised Developer’s Agreement with AvalonBay Monday Night

Princeton officials will meet in closed session Monday night at 6 p.m. to discuss litigation with AvalonBay, the developer of the former hospital site on Witherspoon Street.

The governing body is slated to approve a revised developer’s agreement with AvalonBay during the public portion of the meeting at 7 p.m. in the main meeting room at town hall. The new agreement is a result of talks between AvalonBay and representatives from the town over the last two weeks.

medical centerAvalonBay sued the town of Princeton over the developer’s agreement that was approved by the council in April. The agreement that was approved by the council called for AvalonBay to follow revised recommendations for environmental testing. The recommendations were made by consultant Ira Whitman, who was hired by the town to look at environmental concerns. In his revised report, Whitman recommended that more samples be taken to test for volatile chemicals and metals, citing new information that had come forward from residents regarding two former incinerators on the hospital site.

Last month, a Mercer County Superior Court judge ordered AvalonBay and the town to seek the help of a mediator to resolve their dispute. The judge questioned whether the town could require AvalonBay to conduct extra environmental tests at the site on Witherspoon Street, and expressed concerns about the governing body’s vote to approve the developer’s agreement that required AvalonBay to do extra testing beyond state requirements. The judge indicated that AvalonBay would likely win the lawsuit against the town.

Under the terms of the new proposed developer’s agreement, AvalonBay will drop its lawsuit if it is required to comply with the original Whitman report issued in March. AvalonBay has agreed to test the medical incinerator floor drains, piping, and any incinerator ash found during demolition for metals identified in Whitman’s revised findings in April, but will not test for PCBs. AvalonBay will not test exterior soil and soil below the former incinerator room. Instead, the developer will stockpile the soil underneath the incinerator room and use it in subsurface locations underneath asphalt. If any evidence of discharge is found in the soil, it will be removed from the site.

Under the proposed agreement, AvalonBay will also use clean fill topsoil that will be imported to the site for all grass, landscaped areas, and pervious surfaces. The topsoil will be 4 inches deep and cover 65,000 square feet of the development. The topsoil in the community garden will be 12 inches deep. AvalonBay has also agreed to additional air monitoring during concrete crushing operations at the site, but has refused to do any sampling of concrete that is being reused on the site.


  1. An Open Letter To Mayor and Council

    August 17, 2014

    Re: AvalonBay Communities, Inc. v. Princeton

    This is being sent to you prior to your August 18, 2014 6PM closed door session (which had been reported that Mayor Lempert and Councilperson Howard will not be personally present) with the intent to encourage you to at least slow down the process and defer your vote to another meeting.

    Given that during the open public meeting which is scheduled to take place starting at 7PM the same evening and that the public is usually only permitted to speak prior to council’s deliberations, it is doubtful that anything said during the public comment period (3 minutes per person) would enlighten the council if there is not a give and take dialogue. If any compelling, insightful comments are made would you truly have sufficient time for careful reflection?

    To the points:

    The Amended Developers Agreement was posted on the Princeton website on Friday, August 15, 2014 which does not give any of those within our community sufficient time to read, cross reference to Whitman’s Report and consider any implications. Many of our informed citizens including members of council are on holiday and will be obviously absent from the conversation. Why are you rushing when the court order allows way more time and extensions would be granted?

    Judge Mary Jacobson’s Mediation directive put you in a position to negotiate against AvalonBay who has a vested interest in not conducting tests for contamination; you who are individuals that do not have the level of expertise to decide what locations should be tested or what potential hazardous materials or toxins should be tested for. (No insult intended. After all do we know anyone that has the required level of experience with hospital demolition and the scientific expertise?)

    It was Judge Mary Jacobson who allowed (and actually hinted at her misgivings) the the Consent Order, dated April 18, 2013 (Consented to by AvalonBay Communities, Inc., Princeton Planning Board, Princeton and Princeton Mayor and Council) to state:

    The Planning Board shall not require AvalonBay to submit additional testimony or documentary submissions regarding issues affected by the revised design, that is, environmental contamination,existing traffic counts, and the availability of utilities, pg 4

    I trust that you will clarify if dioxins and furans and PCBs (see notes below) will be tested for as recommended by Ira Whitman. The LSRPs did not say to eliminate dioxins or furans or PCBs or lead or mercury from “subsurface investigations” (see Ecolsciences Phase I report)

    Was court ordered Mediation appropriate? Sometimes adjudication must take place in our society even when there are politics and big business interests in play. There were many significant moments in our country’s history, through the courts, that great progress was made in our society. Yes it would be a burden on the court and community but thats why we have courts. (Can you imagine a judge saying, “Well I don’t want to decide that! Everyone within a certain business community will be mad at me and the state legislators who allowed this (hospital not within ISRA) in the first place will be mad at me too!”)

    Apparently the State of New Jersey did not notify municipalities that had hospitals that the Industrial Site Recovery Act does not include hospitals. What would a town do with that information anyway? Set up their own ordinances? Some people wonder if the same developer would have said – you can’t set up an ordinance that supersedes state statutes.

    Did you read a transcript of the hearing? This is asked because you did not attend the hearing. There is a concern that you are only relying on what you read in the Princeton Packet and what the attorneys described. The public will be obtaining a copy of the court transcript.

    Did you request any materials which were allowed by the court through discovery? ie the sales contract between the buyer, AvalonBay and the seller, Medical Center at Princeton.

    Were any of the LSRPs present during the mediation sessions? If they were not present do you have their written opinions as to the exact specifications for testing, monitoring, “subsurface investigations” and the final wording in the Amended Developers Agreement? (Does the definition of environmental “monitoring” mean that sampling or testing is required?

    (Venting – how could you pick and choose which toxins would be tested for or deleted from the list as if it were a desert menu?)

    Are you aware that if soil is going to be hauled off site that there a strict NJ DEP regulations that must be followed along with handling and dumping manifests?

    Is it inappropriate to have soil from potentially contaminated areas moved to other locations on site unless it is known without a doubt that the soil is not contaminated?

    Will there be “subsurface investigations”; sampling, testing of the area where the original incinerator (circa 1948 or earlier) was located which was the more likely source of possible contamination into the soil or the 2nd incinerator area? Or will it be both areas?) and that the soil from this area will be moved elsewhere on site? Actually hauled around? And you are asked to agree to this by the court?

    Are these decisions beyond your professional expertise? Did you consult with the Joint Insurance Fund (JIF) risk management experts? Did you consult with the NJ DCA Engineering licensing experts as to the Land Use Engineer’s discretion when an issue is believed to be harmful to the public?

    Shouldn’t you continue with discovery? ( ie. Through an interrogatory ask Barry Rabner, the president of the Medical Center a few questions about what he knows about environmental conditions and ask for a copy of the sales contract and any records that reference prior environmental investigations)

    Ask the Superior Court Justice Stuart Rabner to assign another Judge.

    Ask the court to conduct a Legislative Intent historic review of the Industrial Site Recovery Act in order to 1. understand why hospitals are exempt 2. understand what it means in the ISRA that if a site has an incinerator that there are no exemptions 3. make a determination of the “Intent of the Law”.

    Ask NJ DEP to prove that they sent notices to each community regarding hospital exemptions. (Who caused this problem in the first place?)

    Ask yourselves why during the MRRO zoning deliberations that the planning board members, the towns council and committee, the municipal attorneys did ascertain on their own the fact that hospitals are not included in the Industrial Site Recovery Act. (see notes below)

    These inquiries should make you realize fully that the decisions about the extent, the absolute specifics regarding soil and ground water testing, should not be settled upon through mediated compromise by Mayor and Council.

    Imagine that something goes wrong and the developer says – hey we were following the directives of the government, see its right here in the Amended Developers Agreement.

    Did you consult with the Joint Insurance Fund risk management experts?

    Did you consult with NJ Department of Community Affairs, State Board of Professional Engineers and Land Surveyors to review the specific clauses in the licensing laws as to the ethical responsibilities that our engineering staff has regarding their rights to refuse to sign a Demolition Permit that in their opinion is potential harmful to the health and safety of the public?

    Did Jack West have legal representation and was Mr. West present in the mediation sessions?

    Did you go to the LSRP board and discuss these specific issue?

    Which agencies and individuals monitor the radon tests and keeps the written records of the tests and if necessary the required radon remediation system?

    Are mediators in New Jersey allowed to permit unethical settlement agreements to be put forth for judicial review?

    Submitted for review and deliberation with the trust that this is useful in some measure by:

    Jan R. Weinberg

    Princeton, NJ



    During construction or demolition, the site shall be monitored by the Land Use Engineer or his or her designee and as required by the applicant’s LSRP with regard to soil conditions related to potential contamination on the property. Page. 11

    Prior to the issuance of a demolition permit in accordance with paragraph G herein above, a site demolition and construction plan shall be submitted for review and approval by the Land Use Engineer.


    Are you certain that you know how these compounds are formed, get into the soil and associated health risks?


    Polychlorinated Biphenyl (PCB)






    Living On Earth’s Liz Lempert reports.

    Medical Waste Incinerators Targeted Air Date: Week of April 24, 1998

    According to the Environmental Protection Agency, hospitals are leading sources of dioxin and mercury contamination. Most hospitals burn anything contaminated with blood or bodily fluids; and this waste often contains large amounts of plastics made with Poly-vinyl-chloride. When those plastics are burned, they release dioxin, a substance known to cause cancer and suspected of damaging reproductive organs. Hospital equipment containing mercury, a neurotoxin, can sometimes end up in the waste stream, too. Now, a coalition of environmental groups is calling on hospitals to phase out the incineration of medical waste. Living On Earth’s Liz Lempert reports.

    1. Jan is to be commended this response. Why are we rushing? This is a very important decision with people’s health at stake. There is no need to rush to vote on this while people are out of town.

      Also, the demolition plan is not attached to the agreement that was circulated. The plan is part of the package and should have been made available.

    2. Jan great letter. You hit it on point. What’s the rush to come to a decision? With such an important issue we should make sure we are protecting our citizens from folks who don’t have our best interests in mind.

  2. August 18, 2014

    Jan, your points are very well made. Hopefully, Council will have an open discussion this evening with questions and answers as opposed to the limited public comment format. From the beginning AvalonBay has had a long standing history of duplicity in communications with the town about the environment and demolition. Is it any wonder that residents are apprehensive? Consider the follow events as they happened:

    Sep 15, 2011- EcolSciences conducts Phase I study. AvalonBay’s own consultant recommended a “a subsurface investigation should be performed to determine if the underlying soils and ground water have been impacted by the sewer lines and/or historic septic system discharges.” AvalonBay’s LSRP identified sewer discharges as a Recognized Environmental Condition. (Noted on page 27 of EcolSciences Phase I and photos of underground storage tanks (photos # 19- 20).

    Nov 9, 2011-AvalonBay redirects EcolSciences (Limited Phase II).
    “As directed by AvalonBay Communities, the scope of work proposed is limited to the investigation of operating underground storage tanks and two abandoned underground tanks.” (see page 2 of Limited Phase II).This was a business decision which had nothing to do with the health and safety of citizens.

    Jun 6, 2012- Maser Consulting Environmental Impact Statement (EIS) states “Site specific investigations performed for the property by EcolSciences regarding the presence of underground tanks and possible contamination revealed that no underground tanks or contamination were found on the property.” (Maser EIS for AvalonBay, Jun 6, 2012) This is completely false (again see photos #19-20 EcolSciences Phase I). The Maser EIS was the only document presented to the Planning Board until PCSN lawyer insisted that EcolScience Phase I and II reports be made available.

    Mar 2014- Ira Whitman on page 6 in his Independent Report (March 2014) for the Municipality of Princeton refers to the EcolSciences Phase 1 report. “This assessment has revealed the following evidence of Recognized Environmental Conditions in connection with the site….Sewer Discharges, Underground Storage Tanks, Facility Decommissioning Requirements, Inaccessible Areas, also ‘non-scope’ considerations such as Asbestos Containing Building Materials, Lead-Based Paints and Radon.” Dr. Whitman goes on to say, “it is assumed that it is accurate and that EcolSciences recommendations will be followed by AvalonBay.”

    Jun 23, 2014 The Princeton Department of Engineering notes in its Notice Regarding Work at the Hospital Site that “evidence of a discharge” was found near two underground tanks at the site and that 5-6 truckloads of soil need to be removed. This confirms PCSN expert James Peterson statement to the Planning Board that “they’re contaminants by definition and the word — use of the word implies a discharge” (Noted on page 54 Planning Board Transcript, Dec 10, 2012).

    The fact that there has been a long history of debate on this, does not make the residents forget what they saw, not does it make the issue of health and safety of our citizens any
    less important. The general consensus at a recent Council meeting, when it was decided
    to hire Neil Yoskin as Environmental attorney was that we need to do everything we can
    to look out for each other. What is the rush? Better to delay the vote and avoid making
    serious mistakes which we will have to pay for in the future.

    Paul Driscoll

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