Real Estate

Affordable Housing: The Who, What, When and Why Explained

Councilman Marc Faecher  Credits: Barbara Rybolt

BERKELEY HEIGHTS, NJ - For the umpteenth time in the past two years, Council President Marc Faecher repeated the phrase, “No meeting would be complete without an affordable housing update,” but this time was different. He didn’t just update people on the current status of the litigation and the various redevelopment projects that will include affordable housing units. This time he started from the very beginning and provided a history of the N.J. Supreme Court Mount Laurel Decisions, including the enactment of the Fair Housing Act (FHA), the establishment of the Council on Affordable Housing (COAH), the lawsuit involving Fair Share Housing Center (FSHC), and how this all relates to the Township.

His discussion, including questions from the public, can be seen on Live Stream.

Faecher said he has given updates “20 to 30 times since this first came upon us in early ‘15. I thought it would be appropriate to clear up some misconceptions and start from the beginning again and then get to where we are today.”

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1975 -  The N.J. Supreme Court decided “Mount Laurel I,” prohibiting exclusionary zoning, which requires communities to provide affordable housing to all “economic strata, including low and moderate income, and you can’t use zoning to restrict affordable housing,” he said.

1983 - The Court issued its ruling in Mount Laurel II after several years of inaction and non-compliance. In the absence of legislation promoting affordable housing the Court created a judicial fix and allowed “builders to come in and file ‘Builder’s Remedy lawsuits,” he said. These suits can force towns to permit high density developments to enable towns to achieve their affordable housing numbers in conformance with the Mount Laurel decision.

1985 - The legislature enacted the FHA, which was upheld by the State Supreme Court in Mount Laurel III.  The FHA created COAH “to assign the municipalities numbers and to identify techniques municipalities could use to comply with affordable housing obligations,” he said.

1987 - COAH adopted Round 1 regulations.

1994 - COAH adopted Round 2 regulations.

1999 - Round 3 regulations were not adopted, as scheduled.

2004 - Round 3 regulations were proposed by COAH, but challenged.

2007 - Appellate Division invalidated COAH’s Round 3 regulations, finding they were too much like the old ones and told COAH to create new ones.

2010 - The court rejected COAH’s second set of Round 3 rules.

2014 -  NJ Supreme Court issued an Order telling COAH to issue new regulations.  In October, COAH had a deadlocked vote and failed to adopt the regulations. 

2015 - In March, the Supreme Court issued Mount Laurel IV and directed trial courts across the state to assume jurisdiction over the management of the affordable housing process.

Each municipality had to go to its assigned court and prove they had plans in place to comply with the requirement to build low and moderate income housing. When they appeared in court with their plans, they could ask for immunity from Builder’s Remedy Lawsuits, until the final plan was approved.

On July 8, 2016, Berkeley Heights went to court, and received protection from those lawsuits pending the development of a final housing plan.  There were three intervenors - developers of: 100 Locust Ave., the former Kings property and the former movie theatre property.  

Throughout the state, each judge dealt with the issue differently. There was no uniformity, similarity or precedent a municipality could look to for guidance.  

Union County created a list of towns and essentially required that settlement be reached or the matter “is going to trial,” Faecher said. “One by one the municipalities gradually settled” with FSHC and the developers.

With respect to the Township’s compliance history, Berkeley Heights previously, entered into “a regional contribution of $2.35 million to Newark, paid for by Connell. (The use of Regional Contribution Agreements to achieve compliance was eliminated by the FHA in 2008). It also approved a few affordable housing projects including developments at Park Edge and Cottage Street. “You have regular units and, embedded in those projects, are affordable units. They are your neighbors and you would never know other than by virtue of an income level, that you’re qualifying to be in one of these affordable housing units,” Faecher said.

In the meantime, legal motions were being filed related to the Gap Period, from 1999 to 2015, when there were no rules establishing how many affordable housing units needed to be built.

Builders and FSHC, an NGO created to promote the construction of affordable housing throughout the state, retained experts to establish how many units needed to be built in each town, said the Gap period had to be accounted for, while municipalities said it didn’t. 

At the trial level, the ruling was Gap years needed to be included. 

In July 2016 the Appellate Division reversed the decision. The FSHC immediately appealed to the Supreme Court, and received a stay of the Appellate Division’s decision.

Sensing a unique opportunity, the Township, which was making progress with developers, “determined we could get a favorable settlement and take some risk off the table,” Faecher said.

On Sept. 20, 2016, the Council approved the settlement which had been reached with FSHC and the developer intervenors.

The settlement agreed to by the Council includes 389 very low, low and moderate income units against the initial 860 units sought by FSHC.  However, only 194 to 206 affordable units actually need to be constructed as described below.

That breaks out to 119 units with new projects on Locust (age-restricted), the former Kings property, the former movie theatre, the former hotel site by Delicious Heights, the Connell Center Project and the Hamilton Avenue Project.  Another 57 units will be in projects at the area at the end of Lone Pine in the DH24 and DMX zones.  The balance will be constructed over time.

Old projects on Park Edge and Cottage Street account for 55 existing units, the regional contribution to Newark accounts for 38 units and the Township received 90 Bonus Credits - the largest available - for prior projects, said Faecher.

He concluded his presentation by listing the things he wanted residents to understand.

  1. This isn’t optional - it’s mandatory - every town has to do it. If the Township didn’t do it, it would have been “hit hard by the court.” He said no one wants over development and he considers the situation to be an “abject failure by our State government … The Council owed its constituents the lowest number of units and the best possible projects, which we have achieved,” he said. They also avoided litigating with FSHC and numerous Builder’s Remedy lawsuits which would probably have cost the Township more than $1 million in legal fees.
  2. Affordable Housing “does not mean slums,” he said. These units will be fully integrated into their respective developments and the people who occupy them could be new policemen or teachers or any other hardworking people. A family of four with an income of $75,000 would qualify for a moderate income property, he said.
  3. The Township obtained significant concessions from the developers of each of the approved projects.  Locust originally wanted 300 total market rate units and the number was reduced to 196 age-restricted units; Kings desired 180 units and only received 150; and the movie theatre site was reduced from 45 to 20 units.  All projects must meet the Township’s design standards, provide ample parking and off-site improvements such as a traffic light at Snyder and Locust and street scape improvements along Sherman Avenue to Plainfield.  None of this would have been possible without the Court-ordered mediation and negotiated settlement.

“We are not done yet,” he said. The Township will be back in court on July 31st because two other parties have tried to intervene. They are Elite, which owns the former florist property on Springfield Avenue, and Mill Creek, which is under contract to buy property at the end of Lone Pine, Faecher said, the Council “is confident it will prevail” at the July 31st hearing and that the Township will receive final approval of its Housing Plan.

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