By Bill Sanservino
Thousands of new homes and residents. The construction of several new schools. Significant increases in municipal and school taxes.
These unhappy consequences could be in store for Robbinsville during the next decade if a nonprofit affordable housing advocate organization has its way.
The Fair Share Housing Center, based in Cherry Hill, is arguing in state Superior Court that Robbinsville needs to provide for 1,000 units of affordable housing by 2025—some 600 more units than the town’s current affordable housing plan.
Robbinsville isn’t alone in the situation. The FSHC has filed motions with the courts asking for numbers in almost every municipality that are much higher than currently planned, and in many cases is calling for 1,000 units, which is the maximum under state law. In Mercer County alone, the organization is calling for the construction of that number of units in East Windsor, Hopewell, Lawrence, Princeton, Robbinsville and West Windsor.
This affordable housing quagmire is a result of a March decision by the N.J. Supreme Court, which ruled that the state’s affordable housing program was “nonfunctioning,” and removed jurisdiction of affordable housing from the executive branch and put it under the control of the courts.
Many municipal officials, including Robbinsville Mayor Dave Fried, fear that the decision will mark a return to the days of the 1980s and early 1990s when judges made decisions about towns’ affordable housing obligations and awarded developers the right to build massive housing developments in order to provide for a small amount of affordable housing.
Developer-driven “builder’s remedy” lawsuits allow builders to sue municipalities and in most cases, they are granted the right to build at a 4 to 1 ratio—four market-rate units for every affordable housing unit to reimburse them for money lost building affordable units and selling them at a lower price.
“You have to blame the legislature and the administration,” Fried said. “The courts did this because they (the administration and the legislature) didn’t do anything. The fact that towns are going through this right now is because they completely and utterly failed every single person in the state of New Jersey.”
In its March decision, the Supreme Court found that the state Council on Affordable Housing had ignored a court-imposed deadline to calculate affordable housing obligations for each town in the state. The court gave the legislature and governor until June to pass legislation that would effectively determine the number of affordable units each town must provide.
When they failed to take any action, the courts officially took control and required towns to file their affordable plans with the court. In August, state Superior Court Judge Mary Jacobson granted Robbinsville temporary immunity from builder’s remedy lawsuits until Dec. 5.
At this point, the next step the courts will take after that date is unknown. If the court rules that the township is in deficit of its need to provide affordable housing, will Judge Jacobson give the community time to devise a plan? Or will she rule that the community is immediately open to builder’s remedy lawsuits?
“We have no idea,” Fried said. “I’m expecting that the judge will be a little more lenient with Robbinsville because we actually were certified previously, and most of the towns in Mercer County were not.”
Fried refers to the fact that the township’s affordable housing plan was certified by COAH before the Supreme Court invalidated the process that the agency used to calculate those numbers in 2013. Robbinsville’s plan provides for about 400 units of affordable housing in the township.
“We’re asking for our original plan to be certified and we’re very optimistic that should happen and will happen,” Fried said. “We’re obviously concerned, though, because whenever you put something in the court’s hands, you’re always nervous.”
He added that so far, he believes Judge Jacobson has treated the township fairly in the process.
“It has restored my faith in the court system,” he said. “Whenever we got called into court against builders in the past, the court always sided with the builders. Judge Jacobson seems to be weighing both sides and it seems that she really understands the issue. I’ve got some confidence that we’re hopefully headed to a good place.”
Fried maintains that not only has Robbinsville embraced its obligation to provide affordable housing, it also has done it in a way so as not to create a stigma for residents of low- and moderate-income units.
“We’ve done a really good job of assimilating affordable housing so that no one knows where it is,” Fried said. “We have affordable housing in Town Center, we have it in Foxmoor. There is not a significant building or development in Robbinsville that doesn’t have affordable housing in it. We’ve been doing this for a really long time. We support affordable housing and think it makes sense, we just want to make sure that it’s integrated into our community so that it makes sense and sits within our character.”
The mayor points out that the township was the first in the state to have a Project Freedom, a project with affordable housing for disabled people that “not only offers affordability, but also offers accessibility so that folks with wheelchairs have a place where they can live independently.”
In a worst-case scenario, the court will rule that Robbinsville must provide for 1,000 affordable units, and leave the township vulnerable to builder’s remedy lawsuits. Fried predicts dire consequences if the courts rule in favor of the FSHC’s number.
“We would need somewhere in the neighborhood of 2,000 to 3,000 units so that we can get roughly 20 percent set aside so that we could hit that number,” Fried said. “Adding 3,000 units, literally doubling the number of homes in our town, would be catastrophic.”
He said the way the town would likely have to approach it is to build high rises, because there aren’t many buildable lots left in the township. “We would need to add significant buildings on Route 130,” he said. “It would destroy the rural character of our community. It would be the exact opposite of what people thought they were getting when they moved into Robbinsville.”
He also predicted the Robbinsville School District would have to build new schools. “Right now we’ve got three schools for 2,300 kids. You add another 2,300 kids and you’ve got to build another three schools. It would absolutely double the amount of taxes people pay, which I think would make people flee our town.”
Part of the reason there are so few lots left to develop is the fact that Robbinsville has been aggressive in preservation of open space over the years, Fried said.
“When the Fair Share Housing Center came up with its number they looked at undevelopable land and based it on that, they said ‘we’ll throw them 1,000 units,’” Fried said. “What they didn’t take into account is that Robbinsville has a 5-cent open space tax and has been investing heavily in open space. A significant portion of the land in Robbinsville that’s not developed is actually preserved. I can’t imagine that anyone would be so foolish as to want us to start unpreserving preserved land.
“It’s an interesting question,” he continued. “In theory, the builder’s remedy supersedes zoning laws, does it supersede open space? It’s unimaginable to me that could happen, but if they can supersede other every law that we have, then why couldn’t they do that one as well?”
One property that could potentially be a prime target for a builder’s remedy development is the Miry Run Country Club, which closed this year. The property is currently zoned for use as a golf course and a small amount of commercial.
The mayor said that if a residential development is proposed there, he would consider preserving it as open space. “I might ask for an increase in the open space tax in order to be competitive with developers to make sure bad things didn’t happen in areas of the town that don’t benefit anybody.”
Fried, along with many other municipal officials and opponents of the builder’s remedy, slammed the New Jersey Builders Association as abusing the situation in the interest of making money.
“There’s no nice way to say it. It’s a scam,” he said. “The builder’s lobby is pushing because they believe that this is a way that they can do an end-around on local zoning. I understand that builders have a role to play, but to be able to circumvent zoning is something that shouldn’t be allowed.”
Bolstering that argument is the fact that the NJBA is represented by Hill Wallack, the West Windsor-based law firm that has been at the forefront of representing developers in builder’s remedy lawsuits. In fact, at one point, the law firm actively advocated for builders to use the situation to get around local zoning.
During the 1990s and 2000s, Hill Wallack maintained a website at nj-landuselaw.com that advised developers to: “Bring an exclusionary zoning suit and obtain a builder’s remedy. Most of the larger residential communities built since 1985 are the result of such litigation.”
The site contained a list of over 280 municipalities that were vulnerable to such builder’s remedy suits and advised: “Contract for land in one of them, decide what you would like to build and sue.”
Today, that URL redirects to a blog run by Hill Wallack that posts news about land use law and court decisions.
Fried also questions the motives of the FSHC.
“This affordable housing, alleged non-profit is nothing more than a shill for the builders’ lobby,” Fried said. “I think if you see the way they’re working in tandem with the builders’ lobby, its pretty obvious what’s been happening. Every time they make a move, the builders’ lobby is moving right with them.”
But the FSHC contends that it’s all about fairness in providing low- and moderate-income housing in all towns in the state and fighting against exclusionary zoning practices.
“Too many New Jersey municipalities exclude people who work in the stores and diners of New Jersey,” said attorney Kevin D. Walsh, who represented the FSHC in the Supreme Court decision in March. “We now have a way to make sure they are not excluded and to ensure there are fair housing opportunities for people who are forced to live far from their jobs and families and who have been displaced by Superstorm Sandy. The court properly responded to the failure of the state government to implement the law.”
In the long run, many planning experts believe the builder’s remedy is a bad solution. It lends to the problem of suburban sprawl, bucks the current trend of people migrating to urban areas, and ultimately winds up making it less affordable to live in a community.
“The punishment doesn’t fit the crime,” Fried said. “They told us what the rules were, and we absolutely met the rules. We did what we were supposed to do, but we didn’t have the ability to create or change the law.
“However, Robbinsville will be the town that gets punished because the legislature failed,” he said. “It would have been more fair if the Supreme Court laid this on the doorstep of those who are at fault. The state should have to pay for affordable housing and should have to figure out where to put it. They should have to pay for the state aid and for the school aid. They should be the ones to manage this process, because ultimately, they are the ones who failed. Their failure is being laid at our doorstep.”
