Bruce I. Afran, Esq. 10 Braeburn Dr. Princeton, N.J.

08540 609-924-2075 Attorney for Plaintiffs --------------------------------------------------------WALTER NEUMANN; ANNE NEUMANN; MARCO GOTTARDIS and All Others Similarly Situated,

SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION MERCER COUNTY

Plaintiffs, v. TRUSTEES OF PRINCETON UNIVERSITY; PRINCETON UNIVERSITY; BOROUGH OF PRINCETON; TOWNSHIP OF PRINCETON; Defendants.

DOCKET NO:

COMPLAINT ---------------------------------------------------------Plaintiffs, by their attorney Bruce I. Afran, as and for their Complaint assert as follows: 1. Plaintiffs Walter Neumann and Anne Neumann are residents of the Borough of Princeton residing at 22 Alexander Street and Plaintiff Marco Gottardis is a resident of the Township of Princeton residing at 9 Harris Road, Princeton Township. 2. Defendants Princeton Township and Princeton Borough published on November 18, 2011 and December 9, 2011 respectively zoning ordinances

creating zoning districts known as the E-5 and/or Arts zoning districts; the Township ordinance is known by number 2011-16; the Borough ordinance is known by number 2011-24. 3. Defendant Trustees of Princeton University are the fiduciaries and ultimate managers of Defendant Princeton University (herein referred to collectively as the University); the E-5 or Arts zoning districts were created to serve exclusively property lots owned by Princeton University. 4. Jurisdiction is properly in the Chancery Division as this action concerns primarily the interests and powers of a single landowner, Princeton University, and its legal capacity to use its lands for certain purposes. 5. Venue is in Mercer County. PRELIMINARY STATEMENT 6. The University has prepared conceptual plans for construction of certain proposed structures in the Township and the Borough to be used in connection with its visual art and performing arts departments. The buildings and structures are to consist of classrooms, lecture halls, plastic and performing art studios for the use of faculty and students, a single 100 seat theatre and some public lobby spaces for occasional exhibits, along with the potential for some retail space and restaurant space. Because existing zoning ordinances in the Borough and the Township will not permit the construction of the proposed buildings and structures, the University, in connection with this conceptual design, proposed an Arts, Education and Transit zoning district in the Borough 2

and the Township to house its desired campus buildings. 7. On or about November 18, 2011 and December 9, 2011 the Township and the Borough respectively published the ordinances approved by the governing bodies authorizing for the exclusive use of the University an Arts Education and Transit District (the two zoning districts are referred to collectively herein as the E-5 zoning districts) that would lift prior zoning constraints on the University lots to permit the construction of the conceptual buildings and structures that would otherwise have required an application for a variance to the Zoning Board. The E-5 zoning districts also permit the construction of a train platform and station buildings to house the Princeton Branch train at a location approximately 500 feet south of on a downhill grade from its present terminus. 8. The University is the sole intended beneficiary of the zoning change; in the Borough the public notice expressly identified that the purpose of the E-5 zone is to benefit the University and no other landowners. 9. This Complaint seeks injunctive relief barring the implementation and operation of the E-5 zone in that it is the product of a contract for the sale of zoning between the Borough, the Township and the University. 10. This Complaint further seeks judgment that the E-5 zone in the Borough and the Township is illegal spot zoning and, inter alia, provides a private benefit zone for the use and benefit of a single landowner that deviates materially from traditional zoning regulations; the E-5 zone has not been implemented as part of a comprehensive zoning plan or review of municipal zoning; no 3

opportunity was given for public comment at the Planning Board review of the proposed zoning ordinances before the E-5 zoning ordinances were approved and returned to the Borough and Township governing bodies; the E-5 zone is inconsistent with the Township and the Boroughs master plans; in particular the E-5 zone is not in keeping with the character of the existing neighborhood but instead will raze the existing neighborhood in the new zone; the E-5 zone destroys an existing service district; the E-5 zone is designed to relieve the University lots of the burden of general regulations applicable to others; the benefits to the community from the E-5 zone are pretextual and nominal; the removal of the train terminus will burden use of the train, interfere with commuters and lengthen their commute; the E-5 zone will alter traffic patterns to the detriment of the utility of the Princeton Branch and to other commuters in the Township and the Borough; the E-5 zone will alter traffic patterns to the detriment of Princeton residents generally; the E-5 zone will add additional traffic lights to the already heavily-trafficked lower Alexander Street; the E-5 zone will permit the removal of the two communities only full service convenience grocery to a location on the very extreme of the settled area outside of normal traffic and pedestrian patterns; parking for McCarter Theatre patrons will be removed further from the locale of McCarter Theatre burdening theatre patrons.

CLAIMS FOR RELIEF FIRST COUNT 11. Plaintiffs seek injunctive relief barring operation and implementation of the E-5 zoning ordinances and declaratory relief that the E-5 zoning is illegal contract zoning. 12. The E-5 zoning ordinances are the product of a contract for the sale of zoning to the University in exchange for monetary payments and other consideration under a Memorandum of Understanding (MOU) entered into between the University and Princeton Borough and Princeton Township. 13. By its terms, the Memorandum of Understanding outlines areas of agreement between Princeton University and the municipalities of Princeton Borough and Princeton Township in regard to the Arts and Transit proposal and for payment of substantial sums by the University to the two municipalities. 14. The Universitys representatives have publicly stated that the Borough would lose the benefits under the MOU if the Borough did not approve ordinances that would facilitate the Arts campus proposal or if it approved ordinances that would prevent or inhibit the Universitys Arts campus proposal. 15. Princeton University President Shirley Tilghman has stated publicly that the University would not renew its agreement for Payment in Lieu of Taxes (PILOT) if the Borough did not approve the Arts district proposal or acted to bar implementation of such proposal. Princeton University Vice President Robert Durkee thereafter stated publicly that the amount of the Universitys PILOT would 5

need to be reconsidered if the Borough did not facilitate or approve the necessary zoning for the Universitys Arts campus. 16. The MOU provides that in connection with its Arts & Transit proposal the University will pay for the construction of a transit plaza and parking lots, pay $500,000 for a trust study fund of which only $100,000 would be due upon the signing of the MOU - the remainder of the monies would be payable only after approval of the Universitys Arts & Transit proposal. The MOU also provides for the payment of $450,000 to the Borough for the construction of three illuminated cross-walks. 17. The Universitys commitments under the MOU were made with the express understanding that they were in exchange for the benefit of the municipalities cooperation in the development of a formal plan to promote increased patronage of the McCarter Theater and Princeton University athletic events, as stated by the Boroughs attorney, Henry T. Chou, Esq., in a memorandum to Princeton Borough Council dated September 28, 2011. The only plan proposed by the University to promote increased patronage of the McCarter Theater is the Universitys Arts & Transit proposal referred to in the MOU. Accordingly, the Borough has acknowledged through its counsel that the provisions of the MOU were in exchange for the Boroughs cooperation in promoting the Arts, Education and Transit district that by necessity includes the approval of the required E-5 zoning. 18. Immediately subsequent to the Boroughs approval of the E-5 zoning 6

district, the University agreed to expand its PILOT payment to the Borough by an additional $500,000; the University had represented to the Borough that it would make such increase after the E-5 district had been approved. 19. Immediately subsequent to the Townships approval of the Arts district zoning the University promised to pay an amount equal to at least $500,000 in a PILOT payment to Princeton Township. 20. Upon information and belief, the above PILOT payments were in consequence of the municipalities approval of the E-5 zoning. 21. Based upon the foregoing, the Borough and the Township have illegally contracted to approve zoning for the University Arts district. 22. Accordingly, plaintiffs seek injunctive and declaratory relief barring the implementation and operation of the E-5 zoning ordinances. SECOND COUNT 23. The E-5 zoning district is intended for the use and benefit of a single landowner, Princeton University. 24. The E-5 zone was passed into law without furthering a comprehensive scheme of zoning and without a comprehensive zoning review in either municipality. 25. The E-5 zone and Arts district zone lift zoning regulations for the University and for no other landowners and in the Borough replaces E-1, E-2, E-4 and NB zoning for University owned lots and for no other landowners. 26. The E-5 zone will change prior zoning for the benefit of a single 7

landowner without a variance hearing or finding by the zoning board weighing the positive and negative criteria, as required under the Municipal Land Use Law. 27. Planning Board review of the proposed E-5/Arts zoning was conducted without a public hearing and without the opportunity for public comment and testimony, including, inter alia, the opportunity to refute the University and the municipalitys traffic study and other matters. 28. The E-5 district was intended to enable the University to develop such structures without application for a zoning variance as required under the Municipal Land Use Law; detrimental impacts and effects, among others, should have been the subject of a variance hearing before the zoning board to weigh the positive and negative criteria of the Universitys requested variances to the traditional zoning as to the affected lots. The E-5 zone will impose the following detrimental effects, in addition to those set forth above: A. The Borough and Township will lose taxable properties in the E-5 zone that will become educational exempt facilities; B. A municipal service district will be substantially destroyed by the E-5 zone; C. Removal of the train terminus as authorized by the new E-5 zone will materially and detrimentally interfere with train service; D. Under the E-5 zone the municipalities only full service convenience grocery will be removed from its current location and placed in a location that is apart from normal pedestrian and traffic patterns and that will create an increased likelihood of crime due to the absence in its new vicinity of its current pedestrian and vehicular traffic during evening hours; E. The E-5 zone permits for the Universitys sole benefit the construction of towers up to a height of at least 100 feet, up to three times the 8

traditional height permitted under the prior Borough and Township zoning for these lots, a relaxation of zoning constraints granted to no other landowners, and inconsistent with traditional zoning for these lots and elsewhere in the Borough and the Township and that is inconsistent with the construction patterns of other structures in the area; F. The E-5 zone provides for material departures from bulk and other zoning regulations for the sole benefit of a single landowner; G. No non-University residential use will be permitted despite the location of a train terminus in the new zone thereby preventing residents who do not drive but need access to mass transit from having the potential to obtain housing at or near a train terminus and interfering with the mandate of the Supreme Court under Mt. Laurel and other decisions; H. Taxable properties and a significant area of the community will be removed from the tax rolls as a result of the E-5 zoning changes. 29. The E-5 zone has been created without a comprehensive review of zoning in the Township and the Borough and does not materially further the welfare of the entire community, will provide no material or substantive continuing benefits to the community and will provide only pretextual and nominal benefits to the community, as follows: A. The addition of a 100-seat theatre for performances will increase the net performance seats in the community by not more than two (2%) per cent and is at best a nominal benefit to the community and is intended for the use of students; B. No commitment has been made by the University to establishing or renting retail or restaurant space to private entrepreneurs and the potential additional retail/restaurant space will not increase the communitys retail/restaurant space by more than one (1%) per cent, a nominal increase and a pretextual public benefit. C. Public exhibition space in the new zone will be nominal and will consist of lobby space in certain buildings occasionally open to the public. D. No facilities for the regular and permanent use of the public are 9

included in the Universitys conceptual plans in the new zone; E. No commitment has been made by the University for any public use of studio space in the Arts district. F. Substantial structures and areas will be removed from tax rolls in prime commercial lots and no commitment has been made to FOR constructing substantially equivalent non-exempt structures in the E-5 district. G. The open area of the E-5 district will not materially increase open space in the community and will make a miniscule increase to the communitys open space. H. The E-5 zone will result in the destruction and/or removal of midNineteenth Century residential buildings that border or comprise the existing Princeton Borough Historic District and that provide a transition to the Historic District. 30. No comprehensive zoning review was made in conjunction with the creation of the E-5 zone and the creation of the E-5 zone is not a part of a comprehensive zoning plan. 31. The Planning Board did not conduct a hearing with opportunity for public comment and testimony in its review of the E-5/Arts zone. 32. The Borough in particular created the E-5 zone under duress caused by repeated threats of litigation by the University and by the threat of withholding of the Universitys payment in lieu of taxes to the Borough. 33. The E-5 zone is intended solely to relieve the University of the burden of traditional zoning regulation including height, size and bulk restrictions without making application for a variance as required under the Municipal Land Use Law. 34. The height, size and bulk permissions to the University are not made available to other landowners in the community and are inconsistent with 10

traditional zoning in Princeton Borough and Township. 35. The E-5 district has been created, inter alia, for the private benefit and convenience of a single landowner so as to enable it to, inter alia: 1) build campus structures and engage in certain activities not permitted under prior zoning laws; 2) render its campus more contiguous by enabling the removal of the train terminus from the location where it has sat for the previous 100 years; 3) enabling the removal of the municipalities only full service convenience store and the train terminus so as to provide an additional exit/entrance ramp for the Universitys parking garage. 36. The E-5 zone is a variance given to the University without proper procedural application to the zoning board and without, inter alia, a weighing of the positive and negative criteria for a variance or public notice as to such variance as required under the MLUL. 37. In particular, the E-5 zone will increase traffic on both Alexander Street where Plaintiffs Anne and Walter Neumann reside, and on University Place, to which their driveway leads, causing material noise, inconvenience and car exhaust; Plaintiffs Anne and Walter Neumann have not had the opportunity to contest the E-5 changes through the mandated variance process before the zoning board in violation of the MLUL and through public comment at the Planning Board. 38. Based upon the foregoing, plaintiffs respectfully request injunctive relief barring implementation and operation of the E-5 zone and declaratory relief 11

that the E-5 zoning and district is: 1) illegal preferential or spot zoning; and 2) is an illegal variance made without regard to due process and notice considerations under the MLUL; and 3) an order vacating the E-5 zone and restoring the zoning as it existed prior to the adoption of the E-5 ordinances. THIRD COUNT 39. No proper or adequate public notice was published by the Township as to the E-5 or Arts district zoning also known as Ordinance 2011-16, as required by law. 40. The public notice did not convey or describe substantive or material information as to the nature and purpose of the proposed ordinance, the landowner to benefit from the ordinance, the existing zoning ordinances to be affected or vacated, deviations from existing zoning or other material information necessary for the public to be adequately informed of the nature and purpose of the ordinance. 41. Accordingly, plaintiffs respectfully request judgment that the Township E-5/Arts zoning ordinance be declared void because of deficient public notice and that the pre-existing zoning ordinance be reinstated.

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WHEREFORE, the plaintiffs respectfully seek declaratory and injunctive relief as follows: 1) the E-5 zoning and district is illegal contract zoning; 2) the E-5 zoning and district is illegal preferential or spot zoning; 3) the E-5 zoning and district permits the University to illegally avoid a variance application before the zoning board; 4) the Township ordinance is void by lack of adequate public notice; 5) injunctive relief barring the implementation and operation of the E-5 zoning and Arts district zoning; 6) an order vacating the E-5/Arts zoning ordinances and restoring the pre-existing zoning regulations for the lots in question; and 7) such other relief as to the Court may seem just and proper. Respectfully submitted,

Bruce I. Afran, Esq. 10 Braeburn Dr. Princeton, N.J. 08540 609-924-2075 Counsel for Plaintiffs Princeton, New Jersey January 3, 2011

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