As Township Council President and lead negotiator in the unprecedented litigation against our Town by developers and affordable housing advocates, I felt compelled to set the record straight regarding the TAPinto Berkeley Heights’ election series answer published response by Republican Primary candidate Tom Foregger to Question 4. 

This is not my opinion, these are the facts. Mr. Foregger’s answer is riddled with several unsupported factual misstatements and legal inaccuracies. The public deserves accurate information, and not a political ploy. This is our town, our community, our homes, our property values….not pawns in a political game.

Mr. Foregger stated that, “The current Council not only favors this pace of development but also has offered tax abatements to the developers as incentives. While it is true we have a substantial affordable housing commitment to meet, we are only required to offer developers the opportunity to build, and it is up to them to decide if they want to do it given the economics.”  Tom Foregger, TAPinto Berkeley Heights on May 25, 2017

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Mr. Foregger’s statement is incorrect on multiple levels, and was certainly presented as an electioneering attempt to misrepresent the Township Council’s efforts to stave off demands by developers and to protect our community from unwarranted housing density. I, along with our legal/planning professionals and fellow Council members, have spent countless hours in the negotiation process to protect our community against State compelled over-development.  I have routinely provided updates as to our progress during Conference Sessions at our bi-monthly Council meetings.[1]  Mr. Foregger’s statement either shows his complete lack of understanding as to this State mandated process and the intent of your Township representatives or constitutes a deliberate attempt to confuse the readership—Neither alternative is good. 

1. It is well understood and has been stated numerous times by this Council both at meetings and in readily available documents on the Township’s website that the impending development projects are the result of State mandated affordable housing obligations compelled by the NJ Supreme Court over the past 40+ years, and the inability of our State Legislative and Executive branches to forge a solution.[2]   It is therefore a categorically false statement to suggest that the Council “favors this pace of development”—Stated simply, we are forced to comply with State law and the failure to do so would result in even greater housing densities. Our adversaries in the affordable housing litigation, comprised of several builders and an affordable housing advocate, demanded in excess of 860 affordable housing units—We were able to settle for 389 units with much of that number satisfied via credits from past projects and a Regional Contribution Agreement paid to Newark in lieu of constructing even more housing.

2. Mr. Foregger stated on the record during the 9/20/16 Council Meeting that he agreed with and supported the Affordable Housing Settlement that was concluded by the Council and that the risk of not doing so was too great.  (See 9/20/16 Highlighted Published Meeting Minutes)

The Affordable Housing Settlement expressly includes the development projects needed to achieve the Settlement (such as 100 Locust, Former Kings Site, Movie Theatre, Former Hotel Project Site adjacent to Delicious Heights, Connell Center)[3]—The failure to follow through on the projects in the Settlement could result in draconian penalties being imposed upon the Township including Builder’s Remedy lawsuits (to increase housing density) and exposure to claims of lost profit and counsel fees.[4]  His approval of the Settlement must be referenced given that everything else that follows from it is in direct contradiction with his apparent new position on the matter.

3. In agreeing with and accepting the underlying premise that the Settlement and the number of units was reasonable and necessary, his statement that the Township is only obligated “to offer developers the opportunity to build, and it is up to them to decide if they want to do it given the economics” is patently inaccurate and is inconsistent with and in violation of the law.

Affordable Housing law expressly prohibits the addition of cost generative obligations upon developers to make their ability to construct the affordable housing units more difficult. [5]  Additionally, if the economics of affordable housing projects are not viable, developers will push for and get increased density in order to make the project economics work. One way to combat that is to use PILOT agreements which serve to reduce the overall tax liability to the developer while actually INCREASING the amount of the payment which is paid to Berkeley Heights—At the same time PILOTs substantially REDUCE the component paid to the County. Similarly, there is nothing which precludes the Township from directing PILOT monies towards the schools when and in the event that increased costs are created by and as a result of one or more of the projects.

4. Mr. Foregger states that “I am very concerned about these arrangements. According to a 2010 report from the NJ Controllers Office, PILOT agreements result in significant foregone revenue, introduce tax inequities that deserve closer scrutiny, and should only be used after a cost-benefit analysis, but the Council has done no such analysis.”

This statement is factually and legally untrue.  Prior to adopting any PILOT agreement, all developers must establish that the project economics do not work in the absence of such an Agreement.  The Township utilizes Value Research Group, a firm with expertise in property valuation and PILOT agreements to assist with these very analyses. No PILOT will be ratified unless and until the requisite economic analysis has been completed.[6] 

Stated simply, and as I routinely explain to my kids, there is no such thing as a free lunch.  Developers will either get to construct a cheap looking project and/or build more units to make the project economics work, or we can utilize a PILOT as one tool to help drive the quality of the project up and the number of units down—As a matter of law you cannot have it both ways.[7]

CONCLUSION

Electioneering phrases cannot change the facts.

I am hopeful that this Statement corrects the record as to Mr. Foregger’s response to Question 4 and makes clear that affordable housing compliance is mandatory and not optional.  We have real issues demanding real solutions.  I and the rest of your Township Council members live here and pay taxes here, and we will continue to do everything possible to minimize overdevelopment in our Town and hold developers accountable for the hard fought settlements that we have reached.

Thank you.

Marc Faecher 

[1] See, for example, Faecher Statement 9/6/16 Conference Session Meeting Minutes http://www.berkeleyheightstwpnj.gov/council/agendas-minutes/2016/09-06-16-Public-Meeting-Minutes.pdf

[2] See, for example, Bergen Record 1/18/17 Article Summarizing Affordable Housing Conundrum.  http://www.northjersey.com/story/news/new-jersey/2017/01/18/nj-supreme-court-ramps-up-towns-affordable-housing-obligations/96712760/; http://www.njspotlight.com/stories/15/03/11/coah-is-history-supreme-court-declares-troubled-state-agency-moribund/; See also, BH Township Council February, 2016 Affordable Housing Overview http://berkeleyheightstwpnj.gov/notices/Affordable-Housing-Legal-Analysis.pdf.

[3] See Affordable Housing Settlement from Township Website Attached to 9/20/16 Meeting Agenda http://www.berkeleyheightstwpnj.gov/council/agendas-minutes/2016/09-20-16-Public-Meeting-Agenda.pdf

[4] See, for example, Affordable Housing Summary from Fair Share Housing Center website—FSHC is the primary counter-party in the Township’s Affordable Housing litigation. http://fairsharehousing.org/mount-laurel-doctrine/  See also, Borough of Dumont Affordable Housing Summary.  http://www.dumontnj.gov/documents/affordable-housing-faq_2016-02-02.pdf

[5] The Fair Housing Act was amended in 2008 to expressly provide that: “Whenever affordable housing units are proposed to be provided to an inclusionary development, a municipality shall provide, through its zoning powers, incentives to the developer, which shall include increased densities and reduced costs, in accordance with the regulations of the Council and of this subsection.”  See, N.J.S.A. 52:27D-311 (h).

[6] See, PILOT Summary prepared by Township Attorney.  http://s3.amazonaws.com/altpress-uploads/PILOT.pdf

[7] By way of example, the developer of 100 Locust originally demanded 300 units—We settled at 196 using the negotiation of a PILOT as a condition of settlement.