According to court documents dated Oct. 9 Cherokee has asked the courts to deny North Arlington’s motion for summary judgement in the developer’s lawsuit against the borough.

Cherokee, a developer with plans to turn Porete Avenue into 1,625 housing units, retail space and parks, filed the lawsuit in December, claiming the borough breached the redevelopment agreement when it failed to take Porete Avenue properties through eminent domain and include the Bergen County Utilities Authority (BCUA) transfer station in the redevelopment area.

The borough made a motion for summary judgement in April because Cherokee failed to pay a $16 million pre-completion security, guaranteeing the timely completion of the project by a March 31 deadline.

The borough argued the Redevelopment Agreement was void because the security had not been paid. On April 4, the borough publicly declared the deal between Cherokee and the borough was dead.

In the statement filed in Bergen County Superior Court, Cherokee claims the borough refused to meet the terms of the contract and did not act in good faith to come through on its half of the deal.

Cherokee pointed out a number of public statements made by Mayor Peter Massa, then a councilman, and Councilman Steve Tanelli dating back to April 2006, stating their intentions to stop the project named Arlington Valley. Massa defeated former Mayor Russ Pitman in the June 2006 democratic primary on an anti-Cherokee, anti-eminent domain platform and won. Then Councilman Massa and Councilman Steve Tanelli voted against the April 2006 Redeveloper’s Agreement, but four other council members voted for it.

After Massa took the Democratic nomination, two council members, Phil Spanola and Mark Yampaglia, who had previously voted in favor of the Redeveloper’s Agreement, began voting in line with Massa and Tanelli and tabled a resolution to take Porete Avenue properties through eminent domain.

When the borough tabled the resolution and Massa, in his run for Mayor, began publicly declaring he would not allow the project to move forward, it excused Cherokee from coming through with the $16 million pre-completion security, according to Cherokee’s statements.

"As evidenced in part by the boroughs’ repudiation of the agreement, the borough was not pursuing satisfaction of the general material conditions in good faith, and thus has no right to terminate the agreement," read the statement.

According to the Redevelopment Agreement, signed and stamped in April 2006 during Pitman’s administration, if the general material conditions are not met "after the exercise of all good faith, diligent and commercially reasonable efforts," then the borough or Cherokee could terminate the agreement.

Cherokee is represented by DeCotiis, Fitzpatrick, Cole & Wisler and does not believe the borough did its best to satisfy the general material conditions of the contract, as evidenced by public statements by Massa, Tanelli and councilmen Al Granell and Sal DiBlasi. Cherokee also pointed out DiBlasi owns property in the Porete Avenue Redevelopment area. DiBlasi co-owns Cobra Construction on Porete Avenue.

In its lawsuit with the borough, Cherokee seeks "specific performance and damages" based on the borough’s alleged failure to come through on the deal when it refused take the Porete Avenue properties.

In the court document, Cherokee argued the case should go to discovery, a pre-trial process to discover each party’s version of the facts.

Cherokee’s argument to deny the borough’s request for summary judgement is threefold. First, Cherokee disputes the "facts" presented by North Arlington, calling them characterizations or legal conclusions made by the borough and the borough attorney. Cherokee argues it could have come through with the pre-completion security, but chose not to because the borough had already breached the agreement.

Cherokee has paid North Arlington $2.6 million in impact fees and claimed to have invested $50 million into the project on top of impact fees, according to the document. Tim White, a Cherokee representative, would not comment on the case while it is in litigation.

Cherokee also did not provide answers as to how a new developer could change things in North Arlington. Last week, Catellus, a Colorado-based developer, showed interest in taking over the EnCap project in Rutherford and Lyndhurst. EnCap, a sister company of Cherokee also backed by Cherokee Investment Partners, has until the end of this weak to cure its defaults with the New Jersey Meadowlands Commission (NJMC).

EnCap plans to build housing, office space and a hotel on remediated landfills in Rutherford and Lyndhurst. In correspondences with EnCap, NJMC Executive Director Robert Ceberio questioned EnCap’s financial ability to complete the project.

Cherokee also did not comment on its financial troubles and how it could have led to the developer’s failure to pay the pre-completion security in North Arlington. In Cherokee’s statement to the courts, the developer maintains the borough’s refusal to come through with terms of the agreement spurred the decision not to pay the security.