Montville Township Discusses Affordable Housing Lawsuit and Recommendations

Fred Semrau, Montville Township municipal attorney, and Joseph Burgis, Montville Township planner and consultant, discuss the new Fair Share Housing recommendations and lawsuit Credits: Gail Bottone

MONTVILLE, NJ - The Montville Township Committee had a special meeting on Tuesday, May 23 to inform and update residents about the laws and requirements of the new Fair Share Housing recommendations and lawsuit.

Econsult Solutions, Inc., a Philadelphia consulting firm, was hired by over 300 municipalities, including Montville Township, to develop affordable housing requirements and to testify during the fair share phase of the affordable housing case. The municipalities will share the cost of Econsult’s services.

Joseph Burgis, Montville Township planner and consultant, and Fred Semrau, Montville Township municipal attorney, spoke to the public explaining the numbers recommended by Econsult and the Kinsey Report, prepared by David Kinsey on behalf of the Fair Share Housing Center, affordable housing advocates.

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Montville Township Mayor James Sandham said, “A striking difference was noted between the two studies.” An explanation is as follows: From the years 1999-2025, Econsult proposed an additional housing need number of 173. The Kinsey/Fair Share Housing Center proposed an additional housing need of 1,361. Sandham commented that the township is comfortable with the Econsult figure but sees the second figure as too high.

When all is said and done, Burgis and Semrau see the final figure as being somewhere in between.

The 1,361 figure means that builders would have to put up about 6,800 new units to get 20 percent of the units that would be required for affordable units.

To meet these figures, Sandham said that Montville Township would almost double in size.

Sandham explained, “A court case was initiated by the Fair Share Housing Center against Montville Township. Several developers have entered the case as ‘interveners’ along with Fair Share.”

“If Montville Township does not settle, and the court rules against the township, the court would then be responsible for the land use/zoning for the developments contemplated by the interveners,” said Sandham.

This would allow the court to take the power away from the township and usurp the power for itself, allowing the court to make all the decisions. Sandham said that the township does not want the court to dictate the use of property, size and scope of projects and number of affordable units a developer can build.

Tom Mazzaccaro, former director of Montville Township Department of Public Works, who was involved in similar proceedings in 1984, said the Council on Affordable Housing (COAH), a previous state agency that oversaw NJ affordable housing, decided on the numbers in 1984, but Montville Township was allowed to choose where the building would take place.

Mazzaccaro also said back in the 1980s Mahwah protested too much, and COAH took complete control of affordable housing in their community.

Burgis explained that Montville Township has been proactive and has kept up with providing affordable housing even though the state did not require it for years. Using the Econsult figure, Montville Township has provided affordable housing over the current (COAH Round 2) required limit.

Burgis and Semrau believe that Montville Township is in the top 10 percent of municipalities that have fulfilled reasonable requirements under COAH rules.

Because Montville Township is a desirable location for building, four interveners are coming forward in court. One represents GI Auto, another one for the Bayer property off of Changebridge Road, and two smaller properties.

Such trials can take up to five months or more, making the cost very expensive for the township. Sandham wants the residents to know that the Committee will be making very important and hard decisions.

As stated by Sandham, “The upside is that the court rules in our favor, and we continue with our current plans and thinking. The downside risk is far greater. If the court rules that a larger requirement exists, the court’s perspective then shifts to how can the intervener’s projects satisfy the higher need. In other words, the court’s view may be to get as many affordable units from those projects.

For example, if a proposed project had 200 units with 15 percent affordable housing units (30), the court and the intervener could agree to build 300 units with 20 percent affordable units (60). The court wins with more affordable units. The intervener wins with more units on the same property, and the township loses as we have a larger development with more affordable units than we would have allowed under local zoning.”

To complicate matters even more, there are two bills in the state government proposing to put a freeze on all of this. The first bill would freeze affordable housing litigation through the end of the year, and the second bill would set up a commission to study the issue.

Background information: There have been changes to the state’s handling of affordable housing laws by the state Supreme Court after Governor Chris Christie’s administration repeatedly failed to comply with an order to establish a new set of guidelines. The NJ Supreme Court voted 6-0 to give the lower courts the responsibility on deciding on a case-by-case basis how many homes should be made available to low and moderate income residents in towns across the state. The ruling will allow developers and low to moderate income residents to go to court to challenge any municipality that does not have a fair share of affordable housing, and it also will allow municipalities to defend their compliance with the law.

COAH is no longer in charge of deciding the number of homes each town must make available after missing two deadlines to write new quotas. The courts are now responsible for each municipality. Towns were required to file in court by July 8, 2015 how they plan to meet their affordable housing obligation.

In 1983, the state Supreme Court ruled that municipalities must provide a “fair share” of affordable housing for low to moderate income residents. State lawmakers created COAH, to regulate the number of units each town should provide. These quotas expired in 1999, and since then, there have been no guidelines on how many units to build each year.

Sandham added, “The Kinsey Report appears to include wetlands in their calculations of land available when determining the amount of affordable housing required. Montville has such property.”

Another issue is something called “builder’s remedy.” Since 1983, the courts have allowed builders to sue towns that have no plan to comply with the state Supreme Court's 1975 decision that requires each town to provide its "fair share" of low-to moderate-income housing. The builder's remedy suits are used by developers to construct housing with higher density than would be allowed under local zoning laws by including units for residents of low and moderate income. In the past, such suits targeted mostly North Jersey towns. The township does not want to be involved in such costly law suits.

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