NEW PROVIDENCE, NJ – The Borough Council introduced three different ordinances regarding affordable housing at its Monday, May 8 meeting. The council also discussed the effects of potentially large affordable housing projects on both the town and the school system.

Councilman Michael Gennaro gave some background information regarding the affordable housing regulations. The affordable housing debate has been going on for decades. It began with a New Jersey Supreme Court case regarding Mount Laurel which became a benchmark decision. The court ruled that every municipality has an obligation to provide its fair share of affordable housing.

This court ruling “has blossomed into a cottage industry of developers who would take advantage of it and use it to build market housing as well as a percentage, typically 10-15 percent, of affordable housing units. It has also blossomed into a cottage industry of non-profit advocates who earn their living by litigating affordable housing issues,” Gennaro said.

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During Governor Christie’s tenure there has been an attempt to limit the affordable housing requirements. However, the courts “did not appreciate” this as they overturned the lower requirements and then “assumed jurisdiction” as to what was each municipality’s fair share of housing. “New Providence has a long history of meeting its affordable housing goals” before and during the ongoing debate, Gennaro explained.

In 2015 the court “reasserted” its jurisdiction over affordable housing matters. It allowed the towns, such as New Providence, which had followed the rules and had their affordable housing plans certified by COAH (Council of Affordable Housing), an opportunity to file for “a declaratory proceeding” seeking the courts’ determination that the municipality was, in fact, complying with the Mount Laurel Act and the Fair Housing Act of 1985. New Providence filed the declaratory action within the time frame allowed by the court.

However, the action was opposed by the Fair Share Housing Center, a non-profit advocacy organization. “By filing this action we acted proactively to prevent developers from petitioning the court for developers’ remedy,” Gennaro said. All potential petitions were placed on hold while the borough attempted to get its affordable housing goals and plans certified by the court. The borough’s attempt folded due to the intervention by the Fair Share Housing Center which forced the borough into negotiations on a settlement agreement. While this was going on it became apparent, based on some decisions that the supreme and lower courts had issued, that the courts were taking a very proactive role towards municipalities, encouraging them to comply with the courts’ and the center’s interpretation of what the goals for each community were. They were “significantly higher” than what the towns estimated, Gennaro said.

After the negotiations New Providence entered into a settlement agreement with the Fair Share Housing Center. According to the agreement the borough’s affordable housing obligations was set at 316 units. Prior to the negotiations the borough had already established 135 affordable housing units.

The borough had two ways to meet the new affordable housing development needs. One was through an inclusionary zoning and the other through general overlay across the borough. The latter would allow developers to come in and pick a site for a development as long as they provided a certain percentage of the dwellings for affordable housing needs. “It would be near impossible to stop them from developing that site, which meant that we could have high density housing nearly anywhere in the borough,” Gennaro explained.

“We decided to be proactive and decide where that high density housing would end up being located.” The borough opted to take inclusionary zoning route. “We allowed an equivalent of 50 units, market and affordable, to be built up on the south-east section of the town on Mountain Avenue near South Street,” Gennaro said. The site consists of 4.8 acres and twenty percent or 10 units have to be dedicated to affordable housing.

The rest of the obligation was met by rezoning a mostly commercial area totaling 83.9 acres. This area is located north-west of the Murray Hill Train Station, surrounded by Salt Brook and Central Avenue. A total of 58 acres of the land will be dedicated for non-age restricted rental housing, approximately 13.5 units per acre. Twenty percent must be affordable units. The site, if fully developed, could house 785 units of which 157 must be affordable and 79 must be rental units. The rest of the site, 25.7 acres, is dedicated to multi-family age-restricted units with 15.4 units per acre. Twenty percent or 79 units of the 395 total units must meet the affordable housing criteria.

These potential new developments could total 1,180 dwellings of which 236 would have to be designated as affordable housing units. The borough received a bonus for the planned 79 rental units meeting the required 316 unit quota. Of the affordable housing units 50 percent must be dedicated for low income or very low income households, and 50 percent for moderate income households. No more than 25 percent of the units can be age-restricted and half of the units must be made available for families.

If these sites were built up to full capacity the population could grow at least by 2,400 people in addition to the existing 12,000 residents. Each unit would likely have 2-3 residents and approximately one third of the new residents would be children, Gennaro calculated. “Does this make sense? I think from a policy and planning point of view it makes very little sense.”

“However, we have a court that is very sympathetic to this cause and has a history of ruling in favor of affordable housing advocacy groups. “Under the lousy set of cards that we have been dealt – this is the best solution for the borough,” Gennaro said.

Gennaro noted that the borough cannot guarantee that the land owners in the designated development sites sell their properties to the developers that are interested in building affordable housing units. In that case the activists could petition the court to reopen the case. “This is not a done deal for us.” This is very “intrusive”, but the court is determined to see its plans implemented, Gennaro explained.

The introduced ordinances are complying with the settlement agreement, making the necessary zoning changes and setting a development fee schedule. The development fees will be placed in the affordable housing trust fund.

The council discussed the potential impact of meeting the affordable housing requirements. The added population will affect the area schools, municipal services as well as stretch the emergency and law enforcement capabilities – ultimately dipping into the taxpayers’ pockets.