How Highland Park’s sidewalk rules resulted in higher taxes, class-action lawsuit

Environmentally friendly borough’s safe-walking agenda runs into resistance from homeowners

Dec 1, 2015 (As reported by My Central Jersey)
Highland Park, N.J.

Officials here like to say that their borough is a “walking community.”

The downtown has wide, colorfully paved sidewalks, bright lights and planters with flowers. Crosswalks are clearly marked for children who walk to school in groups. Speed bumps calm traffic. A Safe Walking and Cycling Committee meets every year.

It’s all part of the borough’s efforts to reduce carbon emissions, protect the environment and keep its title — emblazoned on its website — as “New Jersey’s first green community.”

The effort, however, has not been without cost and aggravation, particularly to the many residents who one day discovered that the borough had deemed the sidewalks in front of their homes as unsafe, ordering them to spend hundreds of dollars out of their own pockets for repairs. In some cases, tree roots had to be cut away, resulting in at least five trees falling during superstorm Sandy.

“I didn’t think the sidewalk was that bad, but they thought it was and that was it,” said Louise Williams, a 79-year-old resident of South Seventh Avenue, who eventually paid a contractor $1,800 to replace eight concrete slabs in front of her home. “I got a summons, and I had to go to court and had to pay a fine.”

Last year, eight residents sued the borough in state Superior Court arguing that the program was government overreach that violated their rights and needlessly destroyed trees while creating waste and greenhouse gases.

The judge in the case found that the borough’s 2012 sidewalk-repair ordinance was too vague and temporarily ordered that the borough stop enforcing it.

As a result of that ruling, the Borough Council changed the law, but not before more than 1,200 residents (about 20 percent of the borough’s households) had been ordered to make the repairs or risk $2,000 fines and liens on their property.

The legal battle is not over. In September, a new lawsuit was filed in federal court by Williams and Cherry Street resident Elie Feuerwerker, who enrolled in the borough’s Sidewalk Improvement Program. Under the program, the borough hires a contractor to perform the work, then bills residents in five installments.

The federal civil rights lawsuit seeks class-action status, which would allow hundreds of other residents to get back some of the money they spent as a result of the borough’s former law, according to the two plaintiffs’ attorney, Elliot Ostrove of Epstein, Arlen & Ostrove.

Even if the new lawsuit is not successful, the borough will spend thousands of dollars fighting it — likely resulting in higher property taxes.

In a letter to residents earlier this year, Mayor Gayle Brill Mittler blamed a 4.6 percent municipal property tax increase on the cost of litigation, particularly last year’s sidewalk lawsuit.

The average property tax bill last year was $10,477, the second highest in Middlesex County after Cranbury, and representing a 20 percent increase since 2008, according to a property tax analysis conducted this year by Gannett New Jersey.

Mittler did not return a request for comment for this story but in September penned an open letter to residents defending the borough’s sidewalk program.

“Highland Park prides itself on being a walkable community,” she wrote. “At almost every council meeting since I have been mayor we have heard repeatedly from our senior residents requesting safer sidewalks. We continue to respond to these individual requests.”

The borough’s attorney has filed a motion in federal court to have the lawsuit dismissed, saying the complaint is based on a “demonstrably erroneous allegation” and a “gross mischaracterization” of what the judge in the state lawsuit had said.

In the Superior Court case, Judge Travis Francis temporarily halted the enforcement of the law in September 2014 because he found its language “imprecise” and that it did not give residents fair notice, violated their due process and that it vested “considerable discretion in the enforcement officers.”

Officials initially told residents that sidewalk slabs raised more than a half-inch would need replacing. Later, officials changed the measurement to three-quarters of an inch to match national construction standards, although neither measurement was part of the law.

Arguing before Francis, Mark Oshinskie, the attorney for the residents, called the case “a situation of arbitrary, arrogant, bureaucratic bullying, plain and simple.”

“How could 1,244 people be wrong? How could could all of those people walk across their sidewalk every day and say, ‘Wow, you know, it looks OK to me.’ And then the town will turn around and say, ‘No, 1,244 of our people are wrong, plus their spouses.’ ”

But Travis did not find the local ordinance to be unconstitutional because the state law granting municipalities the right to order property owners to maintain their sidewalks is “well-settled.” The lawsuit was dismissed after the borough amended its ordinance a month later.

Feuerwerker, one of the two plaintiffs in the class-action case, said his sidewalk repair cost about $800, even though he didn’t think his sidewalk was unsafe. Workers also removed a tree.

“I never had any incidents or problems in more than 11 years I’ve been living here,” he said Monday. “It was very arbitrary. They refused to negotiate. There was no communication. They do the job without any feedback or accountability.”

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