By Kevin Coughlin

A judge in Morristown had questions about immunity on Friday, but he wasn’t talking vaccines.

Drew University is suing Madison to vacate its 2020 affordable housing settlement, contending the borough should have included 63 acres of Drew property as available for development. The university says it wants to sell a portion of its 168-acre campus, known as the Drew Forest, to shore up its  endowment against pandemic losses and declining enrollment.

But during a two-hour hearing attended by about 30 members of a nonprofit devoted to conserving the forest, Superior Court Judge Stephan Hansbury left the settlement intact.

Friends of the Drew Forest watch hearing in Morristown, Aug 19, 2022. Photo by Kevin Coughlin

The judge questioned why Drew never spoke up when the borough’s housing settlement was being hashed out. Repeatedly, he inquired how the university can challenge a court-approved agreement that appears to grant Madison a decade of immunity from lawsuits.

“What’s the point of immunity, if there’s no immunity?” Hansbury said to Drew’s lawyer, John Inglesino. “You might as well be a builder standing in front of me.”

Drew University Attorney John Inglesino addresses Judge Stephan Hansbury; to his right is Madison counsel Greg Costano Jr. and Ed Lloyd, attorney for The Friends of the Drew Forest, Aug. 19, 2022. Photo by Kevin Coughlin

Inglesino bristled at that suggestion. Drew is a university, he said.

Disputing immunity arguments, he called the settlement “a classic garbage in, garbage out situation” based on incomplete information that should be corrected.

“You’re saying it doesn’t matter if the borough under-represented its RDP?” Inglesino pointedly asked the judge, referring to Madison’s Realistic Development Potential.

‘MALARKEY’

Madison counsel Greg Costano Jr. labeled Drew’s claims “malarkey.” The borough housing settlement was an open process, it was approved, and it confers immunity, he said.

Moreover, the university rejected borough offers of a conservation easement, and of a $3 million purchase of 9.6 Drew acres for affordable housing, he said.

“To me, that’s the end of the story. That’s it,” Costano said.

Hansbury declined to overturn Madison’s settlement; to do so might jeopardize scheduled construction of 43 affordable units, he said.

The judge will issue a written decision on Drew’s other request, for appointment of a special master to recalculate Madison’s RDP to reflect the availability of university land.

That recalculation pitch was supported Friday by the Fair Share Housing Center, which negotiated the 2020 settlement with Madison.

Center attorney Rachel Lokken said the center had been unaware of Madison’s overtures to Drew. The center advocates for people who cannot afford New Jersey’s high rents and real estate prices.

Drew’s acreage could be “really meaningful for our clients,” Lokken told the judge.

Young Friends of the Drew Forest watch hearing in Morristown, Aug 19, 2022. Photo by Kevin Coughlin

Madison’s affordable housing obligation of 500 units was pared to 147 units in the settlement because of scarce open land, Lokken said after Friday’s hearing.

People wearing Friends of the Drew Forest t-shirts observed Friday’s proceedings in the historic 1827 courtroom of the Morris County Courthouse.

The nonprofit has collected nearly 14,000 signatures in a drive to preserve the forest. Advocates say it’s vital for aquifer recharge, air quality, carbon sequestration, bird habitat and passive recreation.

Governing bodies of several area towns, including Morris Township and Morristown, have joined Madison in endorsing the conservation effort.

Although Judge Hansbury allowed the Friends to join the case as a “friend of the court,” and the organization submitted an environmental report, Friday’s hearing was framed as a housing issue.

“The session was fascinating,” said Judy Kroll of the Friends. “The purpose of our brief is to give the forest a voice.”

Rachel Lokken, attorney for the Fair Share Housing Center, and center Director Adam Gordon talk with Madison Mayor Robert Conley at hearing in Morristown, Aug. 19, 2022. Photo by Kevin Coughlin

Another member, Christine Hepburn, who funded a deer fence around the most sensitive area of the Drew Forest, tried to remain optimistic.

“In the end, I don’t think the Drew Forest will be developed,” Hepburn said, citing steep slopes. “It’s not developable.”

Madison Mayor Robert Conley had a front-row seat for the legal arguments. He described  affordable housing as a moral obligation, and said the lawsuit won’t rupture municipal relations with the 155-year-old university, which predates Madison’s incorporation.

“Drew, like many small liberal arts colleges, is facing challenges. Hopefully, we can help them get through their challenges,” Conley said. “If Madison takes this personally, we won’t succeed.”