With municipal affordable housing obligations now being overseen by the state judiciary, Plainsboro and West Windsor both submitted outlines of their affordable housing plans before the July 8 deadline.
The state constitution mandates fair share housing obligations. Municipalities previously sought guidelines and approvals from the Council on Affordable Housing, an executive agency under the governor. However, in 2008 the state judiciary ruled COAH’s Third Round housing guidelines, which covered the period from 1999 to 2025, unconstitutional. In March the state Supreme Court cited COAH’s failure to issue new Third Round guidelines and shifted affordable housing jurisdiction to the judiciary.
In the recently submitted housing plans, both townships detailed completed affordable housing units and previously prepared Third Round plans for future affordable housing units. The next step for both townships is the preparation of a fair share housing plan based on Second Round affordable housing guideline calculations. The First and Second COAH Rounds covered 1987 to 1999.
“What we now have to do is go back and use the Second Round calculations to determine what our housing plan will be. We are trying to make sure our Third Round calculations are in compliance with the second round formula,” says Michael Herbert, Plainsboro’s affordable housing attorney and the municipal attorney for both townships. Gerry Muller is West Windsor’s affordable housing attorney.
Municipalities must submit new fair share housing plans by November 8. Judiciary approval would complete Third Round obligations and earn a 10-year period of protection from exclusionary zoning, or builder’s remedy, lawsuits.
Failure to meet affordable housing obligations exposes townships to such lawsuits, in which developers cite a town’s affordable housing obligations and attain court-ordered approval to develop residential housing. In 2002 West Windsor lost a lengthy suit against Toll Brothers, in which the developer successfully argued West Windsor engaged in exclusionary zoning. The judiciary granted zoning for what ultimately became the 1,165-unit Estates at Princeton Junction.
The townships also petitioned for legal immunity from builder’s remedy lawsuits.
Plainsboro submitted its complaint seeking declaratory judgment, which included a previous housing program prepared by housing consultant and planner Shirley Bishop, to Middlesex County judge Douglas K. Wolfson.
According to the documents, Plainsboro was one of 50 to 60 municipalities that previously received Third Round Substantive Certification, and the town has implemented all the components in its first three round plans.
Plainsboro’s prior rounds include 205 affordable units, as well as 44 rehabilitated units. The invalidated Third Round obligation is 393 units, which the township has accounted for through several proposed developments and a Market to Affordable program in which a township funded nonprofit purchases of market rate condominiums for conversion into affordable units.
West Windsor, relying on a housing plan previously prepared by planner John Madden, petitioned Mercer County Superior Court Judge Mary C. Jacobson.
West Windsor’s previous petition for Third Round Substantive Certification was neither approved nor denied by COAH. The township currently has more than 700 completed affordable units, and there are 219 proposed affordable units included in the plans for several development sites. In addition, the former InterCap site in the Princeton Junction Redevelopment Area permits 98 units.
