Townships are on alert after the March 12 New Jersey Supreme Court decision shifted affordable housing jurisdiction from the Council on Affordable Housing (COAH) back to the courts. The judiciary is now expected to handle long-awaited affordable housing guidelines, but the recent ruling also raises concerns that municipalities are more vulnerable to developer lawsuits.
West Windsor lost a landmark developer lawsuit in 2002, and the administration has advocated for sufficient 2015 budget allocations for litigation. That lawsuit, which resulted in the development of the 1,165-unit Estates at Princeton Junction, is a poster child for how affordable housing requirements led to unwanted high-density development. The judiciary awarded Toll Brothers a “builders remedy” as a mechanism to enforce affordable housing quotas. The COAH approval process previously provided litigation protection, but now municipalities are expected to go before the judiciary to seek housing plan approvals and legal protection.
COAH is an executive branch agency set up in 1985 to take over affordable housing regulation from the state judiciary. This was done in response to a series of state Supreme Court decisions that established the so-called Mount Laurel doctrine, in which municipalities are constitutionally required to provide a fair share of affordable housing. The mission of COAH is to provide affordable housing guidelines, and compliant municipalities would receive litigation immunity. But the neglected agency has not issued a new round of housing rules since 1999, and unless the governor and the state legislature, or COAH, pass new guidelines, the municipalities are now set to go back through the judiciary.
There is concern in West Windsor that the recent ruling could expose the township to future litigation. At the Council’s budget workshop session on March 23, Council allocated $140,000 for litigation. Council President Bryan Maher had indicated in an earlier budget workshop that in light of concluded lawsuits relating to the Akselrad and Rosen properties, the budget allocations for litigation could be reduced to $90,000 for 2015.
Council settled on a $140,000 allocation for 2015, a $30,000 reduction from 2014.
Township attorney Michael Herbert told Council that any budget reduction for litigation fees would be a mistake “given what is on the horizon,” though he did not specify beyond that. Herbert said he was speaking out of concern for the township’s budget, and not for billing reasons.
If litigation fees surpass the amount budgeted, the township would still have to pay for services rendered. If the opposite occurs, any over-budgeted funds not charged by the township’s lawyers would go to the fund balance. Maher said he would be willing to pass an emergency appropriation in the event litigation fees go over the budgeted $140,000 allocation.
While the recent Supreme Court COAH ruling affects municipalities state wide, West Windsor could face greater exposure. Affordable housing requirements will be a factor in any future development of the 653-acre tract owned by the Howard Hughes Corporation. The company has not been heard from since December, when Council asked for a concept plan in response to the company’s request for redevelopment designation. Calls to Howard Hughes were not returned.
The Howard Hughes property — at the former American Cyanamid site at Quakerbridge Road and Route 1 — is currently zoned for commercial and research, though such zoning could also contain an affordable housing element. Of greater concern to many residents of West Windsor is residential development by Howard Hughes, which specializes in mixed-use master planned communities.
There is no market rate residential zoning for the Howard Hughes property, though the township’s planning authority has been overruled before. The high stakes 2002 lawsuit filed by Toll Brothers illustrates how mishandling affordable housing requirements led to unwanted development.
“The developers love to file lawsuits against West Windsor because of the high property values,” says Mayor Shing-Fu Hsueh, who joined Council soon after Toll Brothers first filed the lawsuit in 1993 and was elected mayor soon before the state Supreme Court ruled against the township years later in 2002.
West Windsor did not immediately participate in COAH’s Round II process, and the developer successfully argued that West Windsor engaged in exclusionary zoning. Awarded a builder’s remedy, under which 15 percent of the units had to be affordable, Toll Brothers was given the green light to develop the Estates at Princeton Junction, which was previously only zoned for condos.
In light of the recent Supreme Court decision, Hsueh cited the 2002 lawsuit and the need to protect the township’s best interest.
“We want to make sure we are consistent with rulings from the state supreme court, and once we are in compliance the courts will properly protect West Windsor from additional lawsuits,” Hsueh says. “It is incorrect that no residential development means no affordable housing. We still have affordable housing obligations, and we have to figure out a plan to meet the quota so developers and not taxpayers pay for affordable units.”
Township land use manager Sam Surtees emphasized the township’s affordable housing obligations is the main question.
“It’s up to COAH coming up with guidelines, or if that doesn’t happen, it is up to the courts. We don’t know yet, that’s one reason why we are not rezoning any property until we know our obligation and it is sanctioned by the court.
The advocacy group Fair Share Housing Center estimates West Windsor’s obligation is 1,844 units, which the township contests. The township’s Round III COAH obligation was 974 units, though Round III was nullified. Typically developers build four market rate units for every affordable unit.
According to longtime township affordable housing attorney Gerald Muller, the courts take over COAH’s duties on June 8 and townships will have a one month window to engage in the new process and seek legal protection. Participating townships will then have five months to craft a fair share plan.
At the March 30 Council meeting, former Council member and Affordable Housing Committee member Alison Miller warned that not allocating enough legal funds to address the affordable housing process would be “the falsest economy Council can indulge in.”
“We want to be in control of our zoning,” Miller says. “If we don’t file, there’ll be a presumption by the judge that we don’t care.”
Aside from the enormous Howard Hughes property, township officials have identified four smaller parcels of developable land. Three are located close to East Windsor.
Thompson Realty owns a 61-acre parcel adjacent to the Institute of Islamic Studies site on Old Trenton Road. According to Surtees, 60 percent of the property is undevelopable wetland, while the rest was previously rezoned to mixed use development under the township’s existing affordable housing plan. American Properties is the developer.
On 571 across Southfield Road from the McCaffrey’s store, there are two adjacent properties totaling nearly 50 acres owned by Atlantic Realty and Tri-State Petro.
Nearby the Elements at West Windsor on the corner of Old Trenton Road and Dorchester Drive is a 45-acre Hilton Realty parcel with commercial zoning.
On the other side of town, Princeton Theological Seminary is partnering with a private developer to build apartment units on a 20-acre parcel on Wheeler Way, next to to the Princeton Country Club. Unlike the adjacent 40-unit Witherspoon Apartments student housing, the proposed development will be open to the public.
West Windsor has around 700 affordable units, and 10 acres of the Toll Brothers’ Maneely tract on Old Bear Brook Road is designated for a 72-unit Project Freedom site.
#b#Plainsboro: ‘In Good Shape’#/b#
‘Do I feel at risk? No. Regardless of what happens, I feel we are in good shape,” says Plainsboro Mayor Peter Cantu, who confirmed the township will participate in the court-mediated process
“The Supreme Court has ruled the state has failed to reach an affordable housing conclusion. If this isn’t resolved, this will fall to the courts. The courts will set up a process and we will have to look to them for approval and protection,” says Cantu. “This could leave municipalities vulnerable to attacks from developer interests challenging them with failure to comply.”
Plainsboro has previously received approvals for the first two rounds of guidelines issued by COAH, as well as negated Round III approvals that called for more than 250 units. There are currently 295 affordable units in Plainsboro, and another 50 are included in the planned apartment development at Forrestal Village.
