It is a humble reptile, generally between five and eight inches in length. It likes to munch on berries and the occasional earthworm. Though it carries its home on its back it can often be found in woody areas, preferably near a stream.

And though there are very few Wood Turtles left in New Jersey, the creature has found itself inside a contentious legal dispute over a proposed apartment complex that would be built in Livingston right on the border with Short Hills.

"The wood turtle has actually been sighted in the vicinity" of the proposed apartment complex, reads a report issued in March by Elizabeth McKenzie, the Special Master to the Court for the various parties that are suing Livingston over the complex. There's been back-and-forth over the terms of the project, including the size and scope of the complex, but an agreement has not been reached yet.

Developers in Livingston have proposed putting up a large apartment complex on the corner of South Orange Avenue and White Oak Ridge Road, and according to recent design plans, it will have more than 50 units.

Residents of nearby Rippling Brook Drive in Short Hills are seething.  Some have formed the Livingston Shorts Hills Coalition (LSHC) to oppose the project, citing environmental concerns, especially for the Wood Turtle. 

"We have a lovely area that is going to be ruined," said Lois Polakoff, who has lived on Rippling Brook Drive for 44 years.

Plans for the proposed apartment complex indicate some areas of it would be four stories and nearly sixty feet high in a neighborhood that features single-family homes on one-acre plots of land and plenty of woods around. The building would also put 12 units of "affordable housing," as mandated by New Jersey fair housing laws, in an area that is otherwise solidly middle and upper-middle class.

Fred Polakoff, Lois Polakoff's husband, said neighbors would be able to see the tall building "like the Empire State Building."

The Wood Turtle, which is listed as a threatened species under the national Endangered Species Act and thereby awarded the same protections as an endangered species, goes to the heart of opponents' resistance to the planned apartments on environmental grounds.

A small stream runs in back of the nearly 4.3 acre lot where developers hope to build the apartments. Because the state Department of Environmental Protection reported Wood Turtles in a forest preserve just downstream from the building site, a developer would normally be forced to build 150 feet away from the stream in compliance with environmental laws. The laws, however, include a grandfather clause that allows builders to come within 25 feet of a stream if they are building over land that has already been developed, as is the case with much of the Livingston plot of land.

"It's very clear the buffer on this project should be 150 feet," said James Cosgrove, Jr. of Omni Environments, who prepared a report on behalf of the Township of Millburn. Millburn officials hired him as part of its legal battle against the project.

But the contested site was once home to Don's Drive-In restaurant, a popular family restaurant that opened in the 1950s.  Tutor Time, a daycare center, occupies the plot today.  Wooden fences line both the Livingston and Millburn sides of the small brook.

Whether the fenced and paved environment is indeed vital Wood Turtle habitat is not as simple a question as it seems, said Matt McCort, a herpetologist for Herpetological Associates Inc., a Jackson, N.J. environmental consulting group.

"It's easy to say, 'Wood Turtles are present, stop the development,'" he said. "Further information is really needed."

Wood Turtles, once abundant throughout the state until much of their habitat was destroyed by development, need three types of habitat in order to survive: hibernating habitat, nesting habitat and foraging habitat, McCort said. Of those, hibernating habitat is most crucial and foraging habitat is least crucial, he said. Development's impact on Wood Turtles depends on what type or types of habitat a specific plot of land features.

"If the level of impervious surface is the same and storm water management meets the same state requirement, it might not impact Wood Turtles," McCort said. "But it could if it had, say, a lot of lawn furniture and a lot of nutrient influx for the stream."

Some Millburn-Short Hills residents admit their opposition to the project has less to do with the fate of the Wood Turtle than quality of life concerns including traffic, noise and neighborhood aesthetics and character.

Rosalie Rubin, who lives on Rippling Brook Drive, believes the Township of Livingston could, if it wanted, find other places to build affordable housing in order to be in compliance with state laws.

"You cannot say to me you have to destroy my neighborhood because you have to put in affordable housing when you turn down other opportunities," she said. "That is arbitrary and capricious."

Livingston Mayor Arlene Johnson said her town was forced to act after the developer, TMB Partners, sued (other developers including Squiretown Properties and Hillside-Northfield Partners have also sued the township related to affordable housing issues).

Under New Jersey law, townships must have a plan for providing moderate- and low-income housing, including allowing higher densities than are otherwise allowed under local zoning rules. If they do not, builders who propose such projects can take the townships to court to force them to grant approval.

New Jersey's Council on Affordable Housing (COAH) defines moderate income as being between 80 and 50 percent of an area's median income, while low income is defined as 50 percent or less of median income. In Livingston, the moderate income limit is about $49,000 for one person, and the low-income limit is approximately $30,600 for one person.

A project does not need to be entirely moderate or low income to qualify for the zoning exemption. Only about 20 percent of the housing in the TMB project in Livingston would be "affordable," for example, while the remainder would be market rate.

Livingston has tried to reach a settlement with the developers, Johnson said, in order to have more influence over the building.

"We've been in discussion with the developer for more than two years with the idea that if we can come up with a settlement we can influence what is built there, it's appearance, its size," she said. "Certainly it's not something we're trying to make happen, we didn't promote it, we didn't initiate it but we were sued so we have to respond to it."

Previously, the developers tried to build a medical office building on the site but were denied.

Millburn Mayor Thomas McDermott said there is no animosity between the two towns because both have been embroiled in the drama of that piece of land.  But Millburn has also filed a suit against Livingston.

"There has been a history with that property," McDermott said. "But we're not in adversarial positions."

Johnson said once a settlement is reached or judgment issued, the developers can take their idea to the town planning board whose responsibility it would then be to determine how the development might affect turtles.

Ed Hertzoff, who has lived on Rippling Brook Drive for more than three decades, both opposes the development and is one of just a few neighbors who has actually seen a Wood Turtle.

"I saw one walk up onto my driveway," he said. "But that was years ago."