Caryn Trela has spent so much time and energy over the past year researching and fact-finding in order to correct what she and 16 other homeowners consider an injustice concerning their rights to have affordable housing restrictions lifted from their properties, that it has prevented her from getting a full, or even part-time, job.
With scarce resources to hire an attorney to represent the homeowners’ cause, Trela says she feels a need to continue pursuing her legal options and making the case for her family and the 15 others who live in Walden Woods, a self-help affordable housing development on Bear Brook Road. Financed by donations, grants, and subsidies from sources as diverse as the United States Department of Agriculture, the Borden Foundation, and Home Depot, Walden Woods was created in the 1990s by a non-profit organized called Bootstraps.
The development was funded through the federal Bootstraps program, in which the homeowners built their own homes. The program accepted “sweat equity” in lieu of a down payment, eliminating the primary impediment to home ownership for low-income families, up-front cash. The program required homeowners to work cooperatively with other participants, defining sweat equity as work done not only on an individual’s own home, but on all the homes in the affordable housing community being constructed under the program’s auspices.
Neighbors were required to spend at least 1,500 hours, or about 30 hours per week, working on their homes. Each family was trained to specialize in a particular trade, and in the Trela’s husband’s case, it was the roofing (Trela met her husband after he had already moved in). Once the homes were built and occupied, they would fall subject to a 10-year affordable housing restriction.
Trela says that now, 10 years later, according to homeowners’ deeds, the affordable housing restrictions should be lifted, along with all of the other restrictions that came with the program. The township and the state Council on Affordable Housing, on the other hand, are saying that the properties are subject to the 30-year affordable restrictions until 2028.
Though no one has stated an immediate plan to sell, the homeowners are curious about what their houses would be worth on the open market. The mayor says township officials have estimated that the properties would be worth double or more than their current assessments if sold at market rate value.
When developer Jay Tyson gained the approval for the homes, it was recorded at the county level that the homes would have a 10-year affordable housing restriction. However, township officials, including Planning Board Attorney Gerald Muller, say the township was not aware of that, and the township ordinance is written to include a 30-year restriction. Technically, if the homeowners want to get the restriction lifted to be able to sell their homes for market value, they would have to get a variance.
The deeds they signed, however, while they contain a 10-year restriction, also state that homeowners have to comply with local and state law, which means they have to comply with the ordinance and COAH regulations, argues Muller. He says that COAH has ruled, in the meantime, that the 30-year restrictions apply.
If the 16 homes in the development were to be designated as market-rate units, the township would have to account for 16 credits elsewhere. The matter has yet to be resolved.
But according to Trela, whose husband, Voytek, was one of four residents who spoke out during the Township Council’s August 3 meeting, there is no document that exists that states that COAH has ruled that the restrictions will be in effect for 30 years.
In addition, she says, the homeowners were given a COAH waiver at the time their homes were built, since affordable housing restrictions were, on average at the time, for 20 years. That waiver details what the township must do to receive credit for the units, she added. “The waiver also mentions that our restrictions are for 10 years,” she says. “There is absolutely no part of this waiver that says these restrictions are conditional.”
The matter began last August, at the 10-year-mark, when her neighbor, Anne Jacobs, sent a letter to COAH, seeking confirmation from them that the 10-year restrictions were, in fact, lifted. “She wanted written confirmation from them that the restrictions were over,” she said.
And so began a four-month period of correspondence. Trela says she had written a letter to Senator Bill Baroni, asking him to look into the matter. Two months later, former state Department of Community Affairs Commissioner and COAH Chairman Joseph Doria responded, she says, claiming that COAH ruled that the restrictions are for 30 years.
That argument, she says, is based on an E-mail “written in a very convoluted way. What the E-mail basically says is that our waiver is not valid because we didn’t conform to regular COAH regulations. The very reason we needed a waiver is because we did not conform to regular COAH regulations,” and the waiver recognized that, she added. “At the time, the state of New Jersey had 20-year restrictions. It changed soon after. But in order to secure the federal funds for this development, federal laws forbade restrictions of that length. Without the waiver, this project would have never been built,” so the waiver was needed, she added.
What Trela says she finds fault with most, however, is Muller’s argument that all affordable housing buildings in the township are restricted for a period of 30 years.
“A deed is something that is inviolable,” she said. “There is nothing that can overrule it or invalidate it.” Further, as for Muller’s argument that the homeowners’ deeds state that homeowners have to comply with local and state law, “the waiver from COAH is based on state law, which trumps local law,” she said. The claim that the municipal ordinance states 30 years, and would govern the decision, is legally invalid, she said.
Some township officials have said they never knew the deeds stated that the restrictions would only be in effect for 10 years, but Trela also says she found minutes from a township Affordable Housing Committee meeting in 1995, during which Tyson states the restrictions are for 10 years.
“The township knew,” she says. “Every committee in the township knew. The most important thing is not that the houses are built, but whether they are going to get credit for these houses. The only document saying the township gets credit is the same document that says we have restrictions for 10 years.”
Trela also says the idea that the homeowners in Walden Woods would like their houses to be assessed at market rate, but still pay the taxes associated with affordable housing, which are subsidized by the township’s taxpayers, is “a diversionary tactic.”
“This is not about taxes,” she said. “It’s about property deeds. Property deeds secure property rights.”
Says Trela: “What this really is, is a case of government bullying. The government is betting on the fact that we’re not going to get our resources together to defend ourselves.”
However, COAH and township officials point to the letter from Doria as a decision made by COAH. Most importantly, they say, is that the letter blatantly states that the waiver the homeowners received for the 10-year affordable housing restriction is no longer valid because the conditions in that waiver were not met.
According to DCA spokeswoman Lisa Ryan, Tyson’s request for relief from West Windsor Township’s 30-year affordability control period required actions by both the township and COAH.
“COAH agreed to reduce the control period to 10 years on homes in Walden Woods provided the developer met certain conditions and received approval from the township, which plainly did not occur,” she stated. “The developer failed to comply with several of COAH’s conditions by not following proper administrative procedures. For example, single-person households were allowed to buy three-bedroom units and household income certifications were not completed. In addition to the non-compliance, the developer failed to seek out necessary approvals from West Windsor for relief from the township’s affordable housing ordinance, which requires a 30-year affordable housing deed restriction.”
Doria echoes this in his letter to Baroni. There were three stipulations for the waiver, he states: “that a random selection process be utilized to select the applicants; that the municipality commit to buying any unit that might come up for sale during the 10 years to maintain the affordability; and that the project continue to work with COAH to ensure that the administration of the development was in compliance with COAH requirements.”
Doria also states that in April, 1998, the executive director of COAH sent a letter to Tyson, repealing the requirement that the municipality buy the unit upon a sale within the 10-year restriction period, since Tyson told COAH that the mortgage was assumable by another low or moderate-income buyer and would be properly transferred according to COAH’s regulations.
At this point, what was required to occur under the waiver was for the Affordable Housing Management Service (AHMS) at the Department of Community Affairs to oversee the affirmative marketing of the units, the random selection process, the certification of the potential buyers, matching households with units, and the placement of the proper documents on the units, he states.
However, AHMS was never contacted and therefore, was not engaged in the administration of the units, Doria states in the letter. “by the time the DCA was notified that the units were being sold, the potential buyers had already been selected, attended trade school, purchased their respective lot, and ordered their homes.
“In looking at the paperwork after the fact, it was discovered that many of the homebuyers were not income-qualified and that many of the buyers of the three-bedroom units were single-person households, which is in violation of COAH’s rule,” he stated.
Trela, however, points out that in the COAH waiver, granted in 1993, the fourth condition states that “once a municipality has agreed to host a Bootstraps project, COAH will work with the municipality and Bootstraps to ensure that the administration of the development is in compliance with COAH requirements.”
“The AHMS is never actually mentioned in the waiver, but the AHMS is the ‘authority’ for our homes, as written in our owner’s agreement/deed restriction,” says Trela. “Doria claims that the AHMS was ‘never contacted,’ ‘not engaged in the administration of the units,’ and that DCA was not notified the units were being sold until after the homeowners had been selected. I don’t see how Doria can claim that DCA didn’t know about the sale of the homes when DCA is listed in the first paragraph of our owner’s agreement as the administrative authority for and party to that sale.”
In addition, minutes she found from a Planning Board meeting in 1995 state that the random selection of income-qualified individuals took place using “COAH methodology,” Trela recalls.
Those minutes state: “A public meeting was held on 5/17 with drawings made in numeric order based on determination of eligibility, acceptable credit background, used COAH methodology. [Alison] Miller commented that extra classifications are needed for Bootstraps.”
Doria goes on to state in his letter that according to documents that COAH now has, prior to COAH’s letter of 1998, Tyson “sent an amended deed restriction and letter to the Chief of Rural Economic and Community Development office of the USDA” in April of 2006 stating that since COAH is no longer directly involved, “references to it and the usage of some of its terminology have been replaced with references to National Affordable Housing Act of 1990.”
The letter included the deed restriction that had been stripped of all reference to COAH or the Fair Housing Act, Doria said. “This action violated the waiver for a shortened deed restriction period granted by COAH,” he wrote.
“Since COAH language was removed from the deed restriction, COAH supports West Windsor’s claim that their ordinance was the controlling document on this project, which required that all new affordable housing projects have a 30-year control period,” Doria wrote. “All homeowners agreed to this when they signed the deed. The municipal Planning Board approval of this project states that the applicant shall comply with the township’s operational provisions for low and moderate-income housing projects. Those provisions state that newly constructed affordable for-sale units shall remain affordable for 30 years.”
Muller says that the residents may not have had “a mis-communication with the township, but certainly Bootstraps did. Clearly the residents were being told by Jay Tyson that it was 10 years. They did have that one instrument that was prepared that said 10 years. But, it’s clear from that instrument with the 10-year restriction that it refers to an affordable housing agreement. That affordable housing agreement was never filed, and that’s a coah regulation.”
“I don’t know how they can say the waiver is still good,” he added. “It’s clear from COAH that COAH doesn’t consider it in effect. Obviously a decision was made at the administrative level. Now there’s a letter from the commissioner. You really don’t get higher than that, except for the governor.”
However, Ryan clarified COAH’s “position” in her statements. “COAH is not legally requiring that the homes in Walden Woods have affordability controls for another 20 years,” she said. “COAH’s position is that the terms of the waiver from the 30-year affordability control period (to 10 years) were not met, and therefore the homes might not be eligible for COAH credit as part of West Windsor’s Fair Share Plan.”
“However, if it is determined that the homes can be sold at market rate, they would be subject to market rate taxes,” she said. “If it is determined that the owners are subject to 30-year deed restrictions, the homes could only be sold at an affordable price to an eligible household, who would then pay taxes based on the restricted sales price.”
In the meantime, Muller said the township will make a decision “shortly” on the matter. He expects it to come by the end of the month.
Mayor Shing-Fu Hsueh maintains he met with residents from the development earlier this year, telling them he would work with them closely to try to help them. But before that could happen, Hsueh says, the residents filed the comment directly with COAH, and he was advised to no longer meet with the residents.
During the Township Council’s August 10 meeting, three residents from Walden Woods said they were told that council would be holding a closed session on the matter. However, Township Attorney Michael Herbert said the earliest date for a closed session on the matter would be on Monday, August 31, but that date is not certain.
Trela says there will be no mass exodus if the restrictions are lifted. She says she and her husband are the youngest couple in the town, and the only one without children. Families “want to stay in their homes for the long term,” she said.
