After a three-year legal battle, Daughters of Israel’s plan to expand its senior-care facility in West Orange with a five-story building appears to be moving forward due to a loophole in the township’s affordable housing obligation.
The Town Council voted unanimously to reach a settlement with Daughters of Israel’s called a builder’s remedy lawsuit on the advice of the township attorney, who cautioned that the nonprofit could sell the property to a developer.
“We’re playing the cards we were dealt and you’re in a much better position to settle this with something you can live with as opposed to the potential for 432 family units with cars and children in the school system,” said Mark Semeraro, township attorney.
“It’s not a matter of whether we like it or whether we even agree with it — it’s a matter of applying the law and the legal guidance that Mr. Semeraro gives us,” said Councilman Joe Krakoviak.
In 2023, the Zoning Board denied Daughters of Israel’s proposal to build 311 market-rate apartments on the property. It was a close 4-3 vote in favor of the application, but because an approval for a use variance requires five yes votes, the plan was denied.
Since then, Daughters of Israel has tried to use litigation to push the project through, claiming that without this new construction, the nonprofit would go bankrupt. First the nonprofit filed a lawsuit suit against the Zoning Board. But the lawsuit was defeated. That decision was appealed. There is still no ruling on the appeals.
Last year, when the township government missed the state-mandated June 30 deadline to file its affordable housing plan, this created a new legal avenue for Daughters of Israel to file its third lawsuit: this time it is a builder’s remedy lawsuit. The township settled its first builder’s remedy in August.
Susan McCartney, who spoke at the top of the Town Council meeting, urged the residents in a packed Council Chambers to put the past behind them. “We can stand here and fight how we got here or we can do the right thing and vote for them to stay to continue the care they give,” McCartney said. “I urge you to vote yes.”
David Silverstein, Daughter of Israel board president, said the reason the facility needs to build market-rate independent living units is to offset the losses incurred caring for Medicaid patients.
“Lots of private institutions or businesses that do what we do don’t take Medicaid they refuse to,” Silverstein said. “We lose millions and millions and millions of dollars a year caring for Medicaid patients.”
While many supporters of the settlement praised Daughters of Israel for their work in caring for seniors, others claimed that the slew of builder’s remedy lawsuits settlement was circumventing the township’s land-use boards — composed of mayoral and Town Council appointees — and its power to make decisions about development.
Miky Faibis, who lives near the proposed construction, said he bought his home for the views of the golf course that will be obstructed by the new five-story building. “Now Daughters of Israel wants to build a five-story building that is twice the height that West Orange allows in a residential area,” he said.
Jim Donnelly, who also lives near the proposed site, said that 10 years of construction would “disrupt his life.” “The settlement agreement had no change — they’re not changing anything in their project that they wanted to do,” Donnelly said. “Why not a four-story building? The community is willing to work with them.”
One criticism among members of the public is that that settlement agreement seemed to contain two pages exhibits, including the concept plan, that were left blank. However, Semeraro said there is an additional ordinance that will be introduced next month that will lay out the plan in more detail, noting it will comply with the township’s steep slope, impervious-lot coverage, and the tree ordinances.
This is the second builder’s remedy lawsuit that the Town Council has reached a settlement on. The first was for an apartment building on 410 Main Street that will provide two units of affordable housing. There are four similar lawsuits pending. Krakoviak said the settlement could put the township in better standings with the courts and even win back immunity from further lawsuits.
“It’s likely that the other four settlements we have to make are going to be even worse,” he said.
