Special consultants hired by the West Windsor Planning Board are questioning the feasibility of a key element of InterCap’s proposed development at the Princeton Junction train station.

The promenade — a feature that proposes vehicles, pedestrians, and bicyclists sharing the same road space — may not work in a town like West Windsor, consultants testified on February 23 during a Planning Board review of two ordinances required to be approved under the township’s settlement agreement with the Intercap.

The consultants also expressed concern about potential traffic problems associated with cross streets perpendicular to the promenade, the density of the 800 housing units proposed in the plan, and the low percentage of affordable housing, among other issues.

The board hired the outside professionals to avoid a conflict of interest and provide an unbiased review of the ordinances. They are being paid out of the board’s professionals’ budget.

Board members weighed those concerns for four-and-a-half hours before making a short list of recommendations to the Township Council and sending Township Attorney Michael Herbert, who has been negotiating with InterCap on the settlement, back to the developer to find more information on the number of affordable units, density, and the promenade. He is expected to report his findings during a continuation of the hearing on Wednesday, March 2.

Following the meeting, InterCap CEO Steve Goldin remained positive despite the problems the board and its professionals found with the ordinances. “We have worked tirelessly and cooperatively with the mayor, council, and township professionals to negotiate a settlement that is fair and reasonable for all parties, and will provide residents with the public gathering space and retail shops they desire.”

Last month, the Township Council introduced the two ordinances in order to enact the settlement agreement adopted by the township in November. The settlement calls for 800 housing units, retail, and infrastructure and amenity improvements on InterCap’s property at the Princeton Junction train station. The most notable is the 50,000-square-foot promenade that would provide a public area for residents and a “shared space” between cars, pedestrians, and bicyclists.

The first ordinance outlines standards as they apply to the InterCap property and identifies the areas of the redevelopment plan that will not be applied to the InterCap tract. The second ordinance guarantees that the terms of the settlement and redeveloper’s agreement will remain in place, even if the township’s redevelopment plan is struck down by subsequent litigation, should it occur.

InterCap, led by Goldin, a township resident, had sued West Windsor over the redevelopment designation of the 350-acre area around the Princeton Junction train station, which included InterCap’s 25 acres off Washington Road.

Superior Court Judge Linda Feinberg, must hold a “fairness hearing” and then approve the settlement once the ordinances are adopted, a component of the agreement. If Feinberg grants approval, a development application as outlined by the settlement would go to the West Windsor Planning Board for approval. If the board approves the application, Intercap will dismiss its lawsuit against the township.

The board can make recommendations to the Township Council before it votes on Monday, March 7, to adopt the ordinances.

“Our recommendations are not binding,” said Planning Board Chairman Marvin Gardner. “The settlement agreement was very specific. I really question what we can change here. Later on, if the Planning Board denies the site plan, InterCap can continue litigation.”

However, board members still voiced their consultants’ concerns with the ordinances. Herbert explained to the board that many of the provisions in the ordinance were the result of over a year of negotiations and compromises with InterCap, which would not budge on certain issues.

At one point during the meeting, Planning Board Chairman Marvin Gardner criticized the negotiation process, saying the township should not have agreed to attach the ordinances to the settlement agreement.

Councilwoman Linda Geevers, the council representative on the Planning Board, had pushed for language in the ordinance that would guarantee that InterCap is responsible for providing all affordable housing generated by the site on its own property — and not burdening the township with having to take care of any obligations generated over the 5 percent set aside under the ordinance.

At this point, Herbert warned the board that it was getting into the area of strategy and urged them to avoid that area so as not to hurt the township’s position. “We worked for a year for better than 5 percent,” he said. “We fought them like hell; that’s the best we can do.” If the judge threw out the requirement to only include 5 percent of affordable housing units, negotiations would have to resume, said Herbert.

Gardner responded that the township should have brought the redevelopment agreement directly to the judge without getting into the ordinances at this stage.

He called the agreement “one-sided” in favor of InterCap and scolded Herbert, who was explaining the board’s role to review the ordinance. “We should not have been here,” Gardner said. The argument came late in the meeting, after board members and their professionals raised concerns about many areas of the ordinances.

Linda Weber, of the Philadelphia-base Brown & Keener planning firm, who was hired to be the board’s planner for the case, explained that her role was to review the ordinances for consistency with the township’s redevelopment plan.

Her first concern was the density of 800 housing units that would be located on InterCap’s 25 acres within the redevelopment area.

While Herbert maintained that the township would be receiving a slew of amenities, including the promenade, road improvements, money, and mandated architectural features to ensure the development looked the way West Windsor envisioned, Weber questioned the validity of including specific and detailed architectural design standards as amenities.

Architectural standards, she said, were not amenities. Amenities are considered to be improvements that go above and beyond what is called for in the township’s redevelopment plan and add a “special, unique quality.”

The architectural designs, as described in the ordinance, were already included in the redevelopment plan, which specified only 350 units to begin. “Why are they so special to warrant the additional density?” she asked. She said though, that it’s “not to say that [density] wasn’t merited based on other reasons, like the traffic improvements — but certainly not the architecture.”

She also disagreed with Herbert’s position that the density of housing should be compared against the acreage of the entire 350-acre redevelopment area. Housing for the whole area would be limited to InterCap’s property, as the redevelopment plan does not call for housing on any other site. However, Weber said, “equally as important is the density of this particular tract because this is the neighborhood.” The quality of life for a neighborhood cannot be “averaged” throughout the entire site, she added.

“This is a very high density for this particular site,” she said. “There are issues that are only site specific and cannot be averaged.”

Weber said she also recommended the board require InterCap to provide at least 10 percent affordable housing, as the 5 percent is less than what is typically required under COAH regulations.

The “woonerf” — the European design for the promenade area — may not be successful, Weber pointed out.

She said she saw the concept used in an area of Boston, but that area was very active. “It relies on people being out there, and that function occurring frequently,” she said. “There may not be the density of people using it as such.” Because of this, drivers can forget that it is a shared road and will get into the habit of driving at faster speeds when no pedestrians are in the area.

She also recommended the cross streets near the promenade — which were not included in the redevelopment plan — be removed because they interfered with the people walking on the roadway in the promenade.

Nicholas Verderese, of Manasquan-based KZA Engineering, the traffic engineer hired by the board for the case, echoed Weber’s concerns about the promenade and cross streets. He said he liked “the idea that the promenade may be a good idea, but it shouldn’t be a requirement,” he said of the language in the ordinance. “It’s not the same area where you see those type of roadways.”

Once drivers get used to not seeing pedestrians in the area, it would be hard to get them to revert back to the pedestrian-based roadway. “The automobile is given the lowest order, where pedestrians and bicyclists are given the highest order,” said Verderese. “It’s a very nice concept; I don’t think it works in this instance here.”

He agreed with Weber about the cross streets but also had other traffic concerns. He said reports he reviewed mention possible environmental constraints in the area where the Vaughn Drive extension, which lies to the south of the Dinky line, would be constructed. If that fails to be constructed as a result, “traffic could shift to the promenade or Station Drive area,” he said. “You want to make sure Alexander Road connects to Vaughn Drive before you provide extra connection through the middle of the promenade.”

He also said that he has worked with the Sarnoff Corporation, which has no urgency to move forward with its own plans on its site. Therefore, the connection to Route 1 through that site “isn’t going to happen any time in the near future,” he said. The only alternate, he said, is Washington road, which is already impacted by heavy traffic.

Verderese also examined traffic projections calculated by Gary Davies, the board’s usual traffic engineer, and agreed with his projections for the area. Because of the development’s close proximity to the train station and because no commercial office space was included in the area, only a net of 119 trips would be generated during evening peak hours, he said, referring to Davies’ calculations. Overall, changing the density from 350 units to 800 units would have little impact on traffic projections associated with the new ordinance, as the smallest portion of traffic is generated by a residential use.

When it came to parking, however, Verderese said he was concerned about a lack of specific parking for retail uses on the site, even though parking would be available in the train station lots during off-peak hours.

Both Weber and Peter Lange, the attorney hired to represent the board during its review, both expressed concern with the ordinance that upholds the zoning in the case that the township’s redevelopment plan is struck down. Lange said it appeared it was a way for the developer “to get in through the back door where couldn’t get in through the front door.”

Weber said that “if this ordinance were to be adopted and the redevelopment failed to come to fruition, this ordinance will not achieve the vision in your redevelopment plan.” She said she was “very much concerned about that ordinance.”

Herbert responded to the consultants’ reports, saying that there were a slew of amenities in the settlement plan, which are stated in the ordinances. Those include the 80-foot wide promenade, water features, provisions for a farmer’s market, and the architectural features, which were built into the ordinance. Herbert said that at times, developers will include low-cost materials in its design to save money, but that the ordinance now binds InterCap to providing those features.

In addition, Herbert argued that those standards are “not simply architectural designs,” but included a kiosk, facades (even for the parking area), and public space.

In addition, because of the township’s financial constraints, officials requested that InterCap finance Davies’ traffic report. Under the agreement, InterCap also agreed to pay $2.7 million toward road improvements as well as reimbursement the township $638,000 for costs associated with work done on redevelopment so far.

In addition, the agreement and the ordinance also includes a compromise on retail. Originally, InterCap wanted to include 350,000 of commercial office space, limited retail space, and buildings that were as tall as five or six stories. The township was able to negotiate the height down to four stories, get rid of the commercial office space, and include more retail — up to 70,000 square feet with a possible addition of 30,000 more. “We fought hard to get as much retail as we could,” said Herbert.

Some board members, however, were not convinced the retail component was enough. Planning Board member Robert Loverro, who works in real estate, said in his opinion, “the level of retail that’s identified is not sufficient to create the type of village” the township has envisioned, he said.

With regard to the density, Herbert said the 800 units was a number the township was able to negotiate down from 1,440 units the developer originally threatened. “We came up with 800 as a compromise; we pushed for lower.” The township also pushed for more than the 5 percent set aside for affordable housing (760 would be market and 40 would be moderate). But because of all the amenities the developer agreed to provide, it told the township that it was “economically unfeasible to have units about 5 percent,” Herbert said. “We’re receiving a great deal of amenities that are of great cost.”

Herbert said, though, that “there are ongoing discussions to try to get the developer to make contributions not at this site, but another site,” he added.

In addition, Herbert said he believed the housing for the whole redevelopment area — which is limited to InterCap’s site — needs to be considered.

Mayor Shing-Fu Hsueh, also on the board, recalled Planning Board Attorney Gerald Muller’s earlier statements that even with only 5 percent affordable housing set aside by InterCap, the township would still meet its township-wide affordable housing requirements.

Even though Weber and Verderese suggested getting the West Windsor Bicycle and Pedestrian Alliance involved in studying the circulation for the promenade, Herbert said there was an agreement that InterCap’s architect meet with the WWBPA.

Weber took the position echoed by some residents during council meetings — that a fiscal impact study be conducted and submitted before approval of the ordinances, but Herbert said that study “should not have to be a pre-condition of approval for this ordinance.” The fiscal impact statement would come during site plan approval.

He also pointed to projections made by experts who testified during the redevelopment finance subcommittee meetings a few years ago in the process. Those experts found that as little as .28 children would be generated by the development, or as little as one school-aged child for every four housing units.

Geevers pointed out, however, that the redevelopment plan requires the fiscal impact study before any agreement is accepted. “I have to believe the developer has the information,” said Geevers, who noted that during InterCap’s privately-funded presentations to the public during discussions on the redevelopment plan, his professionals presented some figures. “All they have to do is update it.”

“I’ll request it,” said Herbert. “But the whole negotiation involved fiscal consideration.”

With regard to the second ordinance that ensures the terms of the agreement in the even that the township’s redevelopment plan is struck down, Herbert said officials don’t anticipate any other lawsuits challenging the redevelopment plan. In addition, that ordinance is part of the settlement agreement, and there is no deal without it.

Most of the board members’ own concerns centered around the promenade circulation. “Unless the traffic is very, very, slow, like at less than 10 miles per hour, it will be very confusing,” said Board member Chuck Chang, who asked whether signs or other features could be included.

By design, Weber explained, “it doesn’t show the signs and permitted uses and types of acts that would lend itself to being a successful road.”

Verderese said fixing the problem was a Catch 22. “If you put safety measures in, you get away from the shared road concept,” he said.

Planning Board member Martin Rosen suggested the board recommend to council that it make the design for the promenade an option, and not mandatory. But Weber pointed out that it was InterCap that wanted to used the shared road concept. InterCap was “very adamant in having it in the agreement, and I can’t help but wonder if this is a marketing” technique for the developer, she said, adding that it could be billed as the “first woonerf in New Jersey.”

“In New Jersey, no one stops for pedestrians in crosswalks,” said Simon Pankove, a Planning Board member. “I can just imagine what our traffic officer would say about the safety” of pedestrians in that area.”

Board members also questioned the number of bedrooms the housing units would contain. Hsueh said that under the agreement, 10 percent would be one bedroom, 10 percent would be three bedroom, and 80 percent would be two bedrooms.

Weber, however, said she would need the actual square footage of the housing units, the number of bedrooms, and the number of total units to further assess the density and advise the board further.

“The number 800 [units] doesn’t strike me as being high for a transit village,” she clarified. “It’s the fact there are so many units on a very small portion of the site.”

Geevers maintained she felt the 5 percent affordable housing set aside was still too low. She also said she felt language should mandate that those units be put on InterCap’s site. She also said that if the COAH regulations mandate that the new development generates obligations as much as 10 or 20 percent, it should be the developer’s responsibility, and not West Windsor’s.

That information was among the list of details the Planning Board wants from InterCap before the March 2 meeting. Other information included information the information about the size and number of bedrooms, the fiscal impacts, and additional information on the “woonerf.”

The board did recommend to council, though, that it eliminate the cross streets perpendicular to the promenade and add additional retail to the site before approving the ordinances.