WAYNE, NJ – Passaic County Superior Court Judge, Thomas Brogan granted Wayne’s Motion for Reconsideration for revocation of the Township’s immunity in affordable housing matters, saying that Wayne has been “woke in a planning sense; in a constitutional sense.”

Wayne now has its immunity back, but there are stipulations.

In a hearing, held Friday morning, Brogan listened to attorneys who argued for and against restoring Wayne’s immunity. 

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“Wayne has never stipulated to a fair share number, and they've never prepared a fair share plan,” said attorney Adam Gordon, who represented the Fair Share Housing Center.

Gordon felt there needed to be a set number of affordable housing units, and for Wayne to have a plan to meet those numbers before immunity should be given back. 

It has been mentioned more than a few times at Wayne’s public information sessions on affordable housing that Wayne’s obligation is 2,271 affordable housing units. But it seems that this number is just an estimation based on a formula. 

“My real problem with Mount Laurel is that it's so theoretical,” the Judge said, talking about the Mt. Laurel Doctrine which sets affordable housing mandates. “It throws out numbers and it really doesn't often create enough affordable housing from my particular position. It's theoretical, and it's not even to create units, it is to create the environment that's conducive to the creation of affordable housing units.  I mean, it’s written by lawyers.”

Brian Chewcaskie, the attorney for affordable housing matters representing Wayne Township, made his arguments for restoring immunity.

“Has Wayne been determined to be constitutionally non-compliant?” asked Chewcaskie rhetorically. “There has been no defiance by the Township of Wayne with regard to the creation of affordable housing.”

“Wayne is not like any other community,” added Chewcaskie. “Englewood cliffs did absolutely nothing. Wayne has complied with the first and second round, was in the process of complying with the third round and will comply with the third round through the fairness hearing process.”

The Judge said that he was “balancing the fact that Wayne has not promptly complied in all cases with what I think was in the best interests of their constitutional obligation.”

He also said “I don’t want to be the Mayor of Wayne. I don’t want to be the dictator of Wayne.”

Brogan listened to the recommendation of the court-appointed Master Planner, Christine Cofone, who said that enough progress had been made to “justify granting the Motion for Reconsideration.”

However, Cofone felt that the court should not restore immunity “without imposing some really tight time frames for [Wayne Township] to accomplish ordinance introductions as well as completion of agreements with ‘Toys.’”

‘Toys’ refers to the proposed development at the Toys R Us property which will include upwards of 1,360 units, according to comments made by Adam Gordon. This will be the largest, by far, of any proposed development. Larger than the development at GAF, Rockledge, Waynebridge, the Preakness Shopping Center and AvalonBay combined. There could be as many as 270 affordable housing units set aside at this development.

After listening to arguments, Brogan ruled in favor of Wayne.

“I'm going to grant the application for the motion for reconsideration,” he said. “I find on the basis of new evidence that Wayne has been ‘woke’ in a planning sense; in a constitutional sense.”

His ruling was “nunc pro tunc,” a legal term that translates to “now for then,” and means that Wayne’s immunity was restored back to the day it was revoked: November 10.

This is a big victory for Wayne Township, but Wayne is not out of the woods yet.

“That doesn't mean this lasts forever,” warned Brogan. 

He mentioned conditions that include an expedited introduction of “necessary ordinances and any other prerequisites for the approval and the issuance of permits for Waynebridge, AvalonBay and Preakness, and the prognosis for Toys R Us”

The next fairness hearings were then scheduled for March.

There are two new intervenors whose attorneys were present at the hearing. 930 Berdan Acquisition, LLC and 1655 Valley Road, LLC, who filed a motion to be an intervenor yesterday.

Brogan did not provide them good news, but the hearings for these new proposed properties have not happened yet.

“I'm not inclined, at this point, to keep adding intervenors,” said Brogan. “Because we will never get the town up on its own. I'm not here to develop the entire Town, if I don't have to, and to be in charge of zoning for Wayne.”

These two new developers will have to begin negotiations with Wayne Township, and if its proven that Wayne is not acting in good faith, then Brogan may decide to step in.

Mayor Chris Vergano told TAPinto “I am very pleased that in a ruling today, Judge Brogan reconsidered his November decision that had removed our immunity.”

“This has never been about trying to avoid our affordable housing obligation,” he explained further. “Our hard-fought negotiations have simply been to try to protect the character of Wayne Township and to keep the densities of these new developments in line with what we currently have.”