A Superior Court judge has delayed approval of the settlement between West Windsor and InterCap Holdings, saying a more thorough hearing on affordable housing issues — and a better notice of that hearing — is needed.
Judge Linda Feinberg did not approve the settlement at a hearing on April 5. But she also did not deny it, West Windsor officials said, adding that she has yet to make a decision on the matter.
Rather, the judge is scheduling another meeting for further review and is requiring InterCap and West Windsor officials to send out a public notice explaining the reasoning for including only 5 percent affordable housing units on the on-site. That is expected to come in May.
The settlement, reached last November, calls for 800 housing units, retail, and infrastructure and amenity improvements on InterCap’s property. The most notable feature is a 50,000-square-foot “promenade” that would provide a public area for residents and a “shared space” between cars, pedestrians, and bicyclists.
The integrated development would not include any office space. Under the agreement, InterCap will be required to construct 70,000 square feet of retail space correlated to the phasing of residential units. The agreement also stated that 5 percent of the units on site would be set aside for affordable housing units.
The issue with the 5 percent set aside for affordable housing raised significant concerns — both at the Planning Board and Township Council levels — before the council adopted subsequent ordinances in March to go along with the settlement agreement that it had approved earlier. It also was a concern held by the Fair Share Housing Center.
However, “we took the position that since we have already received a court order giving us approval for the second round for our affordable housing plan, and that we had submitted a third-round affordable housing plan, which we believe is compliant with any affordable housing need generated by West Windsor, it was not necessary to have affordable housing on the site,” said Township Attorney Michael Herbert, who added that there are 40 units on site.
“Once a town has been certified and is compliant, it isn’t required that every new site has affordable housing on it,” Herbert added.
Since the InterCap litigation was filed in May, 2009, as a Mount Laurel affordable housing lawsuit, Mercer County Superior Court Judge Linda Feinberg must conduct a fairness hearing to determine it satisfied Mount Laurel principles and the Fair Housing Act.
Once the court approves the settlement, InterCap has agreed to prepare a “stipulation of dismissal” of its lawsuit and head to the township’s
Planning Board. If the Planning Board approves the development application, the dismissal of the lawsuit will become effective.
Herbert said that Feinberg was concerned with the notice of the hearing on April 5. “The general public should be aware with any settlement to make sure the public interest is not undermined and that it conforms with basic statutes,” Herbert said. “The judge was concerned because of the issues raised by the Fair Share Housing Center and the 5 percent, and she felt that we should have a different notice that would focus in on why we are having 5 percent affordable housing other than the typical inclusionary zoning requirements of
half being low-income, and half being moderate-income.”
Fair Share Housing Center officials said that Feinberg said that “a more thorough hearing on whether it was fair to low- and moderate-income households had to be scheduled and held.”
“That hearing will probably happen sometime in the next few months, and will require a more extensive conversation of whether a 5 percent set-aside for low- and moderate-income households on the site is sufficient,” said Adam Gordon, an attorney with the Fair Share Housing Center.
“Judge Feinberg expressed particular concern as to the fact that the site in the current redevelopment plan has a 18.9 percent requirement for low- and moderate-income households — and so the settlement agreement would go backwards, even though InterCap claimed that they were bringing their lawsuit to increase low- and moderate-income housing on the site,” added Gordon. “Fair Share Housing Center has been raising these objections since November and raised them again at yesterday’s hearing. We hope that Judge Feinberg’s ruling will encourage the Township and InterCap to reconsider the reduction in working and middle class homes on the site.”
In March, during the public hearing on the land use ordinances that would put into effect the terms of the settlement agreement, Township Attorney Michael Herbert told the council that if Feinberg found that the 5 percent affordable housing was insufficient, the “deal’s off,” or the developer would have to come up with higher numbers.
Herbert said that township officials were optimistic about the upcoming hearing, since Feinberg recognizes that the burden for a municipality like West Windsor, which has satisfied its fair share community-wide obligations, is “considerably lessened and hat may well apply because we have so many units that have been constructed and some in the pipeline.”
“She didn’t deny the motion,” he explained. “She didn’t grant it because she felt she needed to have jurisdiction, and the only way she had jurisdiction was by having a more expansive notice.”
The upcoming hearing would require justification of “economic necessity” and other factors, Herbert said. He and Planning Board Attorney Gerald Muller are drafting the new notice to submit to the court.
“We believe that the proceeding on Tuesday [April 5] was somewhat encouraging,” he said. “The township, mayor, and council want to work with the developer and come up with a reasonable compromise, which is what the settlement was. The township does not want to abandon the financial commitment the developer is willing to make for the infrastructure improvements, which we desperately need. We hope it’s a happy medium of having 40 affordable units that would not exist
otherwise, combined with a lot of retail, which is absent from that entire area, and with the beginning of that roadway network.”
Steve Goldin, of InterCap Holdings, did not return calls for comment by the time this article was posted.
