NEW PROVIDENCE, NJ – The Borough Council approved the resolution authorizing the borough’s settlement agreement in the affordable housing declaratory judgment action at its Monday, Feb. 25 meeting. The subsequent zoning changes may lead to drastic changes in the borough’s character and drain its resources thin.

In 2015, the borough sought a declaration of its compliance with the Mount Laurel Doctrine and Fair Housing Act of 1987. The borough and Fair Share Housing Corporation (FSHC) settled litigation in 2016. However, prior to the settlement’s final compliance hearing in 2017, various parties, including Linde North American, Inc. and C.R. Bard, Inc. now known as Becton Dickinson and Company (BD), objected to the settlement and filed a complaint with the New Jersey Superior Court. “It was up to us at that point of time to resolve those objections,” Council President Michael Gennaro said. Now, two year later and with the participation of the Court-appointed Special Masters, the borough, FSHC, Linde, and BD have agreed to settle the litigation and present the settlement for review and approval by the Superior Court.

The affordable housing mandate represents the government at its worst, Gennaro stated. He gave a short history of the affordable housing requirements in New Jersey. He emphasized that providing housing to moderate and low income families has a “noble purpose” that all should support. However, he criticized how the issue has been handled in the state. “It is completely wrong,” he said.

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The affordable housing debacle started in 1975 with what is now known as the Mount Laurel decision by the New Jersey Supreme Court. It required that every developing municipality must ensure a realistic opportunity for the construction of housing affordable to low and moderate income households. However, many municipalities did nothing to meet the requirement. Eight years later the Mount Laurel II decision reinstated the state mandate that municipalities must provide realistic opportunities for low and moderate income housing. The court instituted a series of policies and remedial measures in order to make the mandate work.

In 1985, the state executive and legislative branches passed the Fair Housing Act. The new legislation was administered by the Council of Affordable Housing (COAH). It established calculations for affordable housing needs. Gennaro noted that New Providence complied with all COAH regulations. Councilman Robert Robinson added that New Providence did not acquire affordable housing units in other towns although that was allowed within the COAH rules. We welcomed low and moderate income housing in New Providence, he said.

Several rounds of COAH regulations took place for decades. However, the general assumption was that many municipalities tried to avoid their fair housing obligations. By 2014, the COAH Board had failed to meet the deadline by the Supreme Court for establishing new Third Round guidelines. The following year, in 2017, the New Jersey Supreme Court ruled that affordable housing obligations would be administered by the court.

The court allowed municipalities to file declaratory judgment actions to have their affordable housing plan approved. New Providence has done everything it possibly could, Gennaro explained. The application was tested by the FSHC. The borough entered into settlement negotiations with the FSHC and an agreement was reached in December 2016. According to the agreement, New Providence would rezone areas around the area northwest of the Murray Hill Train Station.

By using the affordable housing argument, real estate developers have been able to file a so called builder's remedy lawsuit to force municipalities to allow the construction of large, multi-family housing complexes that include some affordable housing among mostly market priced apartments. The borough’s plan was to limit high density housing to designated areas. The plan was also favorable for the FSHC because it allowed development of areas in close proximity to transportation, schools and shopping. The court approved the borough’s compliance plan in January 2017. However, there were several objectors, Gennaro explained.

Mayor Al Morgan pointed out that the court agreed that the borough’s plan was the best they have ever seen.

The settlement agreement includes a slight increase of units, some of which were directed to the Mountain Avenue location. The requirement of 316 affordable housing units has not changed. The borough has identified the property at 100 Mountain Avenue for age restricted housing. A total of 59 units will be designated as low or moderate income units. The property at 575 Mountain Ave, adjacent to Lantern Hill, will be rezoned for continued care housing with a density of 17 units/acre, with an option to increase the density to 24 units/acre provided that $3,000 per extra unit be provided to the borough’s affordable housing fund.

The former C.R. Bard property will be zoned to house 192 residential units, of which 38 are designated affordable. Robinson explained that on that property there is a small soccer field which will be donated to the borough.

Other locations between Central Avenue and the Salt Brook and Murray Hill Train Station will be rezoned so as to accommodate additional residential housing. In total the borough will add 1209 residential units. Of the affordable housing units 13 percent must be very low income housing units and 50 percent must be low or moderate income housing units. Gennaro noted that this will not be a one time action, but the courts want to see that these actual plans are implemented.

The new affordable housing mandate will have a significant impact on the borough. The borough currently has approximately 4,000 residential units and 12,000 residents. With the 1209 additional residential units New Providence’s population could grow by 25 percent. Meanwhile converting commercial properties into residential developments takes away the economic diversity of the town. “This is not what a good planner would do,” Gennaro said as this mandate has “absolutely been forced upon us.”

He noted that 75 percent of the new units could have school age children and potentially add 700-900 more children to the borough schools. Additional students require more school space and more teachers, and thus will drive educational costs up. A significant population growth will require that the borough expand its police department and other services. He noted that the current infrastructure, such as the sewer system, will not be able to handle such a large capacity increase without significant upgrades. He also wondered if the volunteer based Fire Department and Rescue Squad will find enough new volunteers to man these vital public safety units.  

The new agreement will be sent to the courts for evaluation by April, 5. After the approval, the borough will have 120 days to make the necessary zoning changes.