The Walden Woods residents who have been engaged in a dispute with the township over affordable housing restrictions on their properties have filed a motion with the state Council on Affordable Housing seeking the chance to resubmit their objection to the township’s housing element and fair share plan.##M:[more]##
Caryn and Voytek Trela, who have been representing the 16 homeowners in the development, say they filed the motion on August 26 before noon, the deadline for which COAH was receiving motions for its next meeting on Wednesday, October 14.
Walden Woods, on Bear Brook Road, was created in the 1990s by a non-profit organized called Bootstraps. 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. Once the homes were built and occupied, they would fall subject to a 10-year affordable housing restriction. The project was financed by donations, grants, and subsidies from sources as diverse as the United States Department of Agriculture, the Borden Foundation, and Home Depot.
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.
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 township ordinance, which has 30-year restrictions on their homes, and COAH regulations, West Windsor officials argue. They also say 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.
Although the residents say they filed a timely objection to the township’s plan, COAH deemed it invalid. The residents are arguing in the motion, however, that their original objection was improperly handled by the executive director of COAH.
“The ignoring and then dismissal of the Walden Woods homeowners’ valid objection is a case in which the evidence and remedy are undeniably clear,” states the Trelas’ motion. “The Walden Woods families filed a timely objection which COAH’s procedural rules dictate must be handled in one of two ways: either the objector is given permission to enter mediation immediately, or the objector has the objection returned in order to correct deficiencies and resubmit it at a later date.”
Essentially what the motion says to COAH, explains Voytek Trela, is that “We filed a timely objection, and if it didn’t comply with your rules, then you should have returned it to us to fix it.”
Trela says other parties, including the township, can file a response to the motion within 20 days, at which time the Trelas would have another 20 days to file a response to the responses. The matter would then be up for a vote at the COAH meeting in October.
Planning Board attorney Gerald Muller said the township is not a party in this matter, but that the township might file a response since “we have an interest in this, and we don’t want to prolong mediation longer than it’s going on.”
In other COAH-related news, a decision made by three state appeals judges that could upend municipalities’ COAH protection from developers has been criticized by West Windsor officials.
Typically, developers apply for a use variance at local zoning boards when they are trying to get a use that is not permitted in local zoning, such as putting retail use in a residential zone or increasing the density of development to more than is permitted in that zone. Planning Board attorney Gerald Muller explained that the case centered around “inherently beneficial uses.” An inherently beneficial use is one that is considered beneficial to the area, without substantial detriment to the public. A developer could seek to go beyond the restrictions in local zoning if it could prove it was an inherently beneficial use.
In the 1970s, the state Supreme Court ruled that affordable housing is inherently beneficial, making it easier for developers to get a use variance for this use, until the 1980s, when the Mount Laurel decisions were handed down, and COAH was created to address this inherently beneficial use. “Now, we had this elaborate statutory framework that describes what faire share obligations a community has, and whether they satisfy it,” he said. “For communities that had satisfied their affordable housing obligation, they have no further affordable housing obligation.”
If a developer claimed that building more affordable housing than permitted was an inherent beneficial use, but the municipality had satisfied its obligations under COAH, and its plan was certified, the municipality would be protected from the developer’s claims.
However, in the case, originating in Easthampton, announced August 24, the court ruled the opposite way. It involved a nonprofit organization known as Houses of Hope, which filed a use variance application with the Easthampton board, seeking permission to build eight multi-family dwellings in a zone only permitting single family homes. The decision made was that the dwellings requested by the developer were an inherently beneficial use, and the court agreed, despite the fact that Easthampton was certified by COAH, and even had 25 percent of excess units.
Muller said he found the decision to be “extraordinarily wrong.”
“I think municipalities that have done the right thing and gone through the COAH process … shouldn’t be subjected to the burdens,” he said. He said he is waiting to see whether Easthampton will apply to the Supreme Court, whether a legislative response will be issued, and whether the League of Municipalities will call for legislation to reverse the decision.
Even though West Windsor has had a long history with lawsuits from developers, including a filing this year by InterCap Holdings, which includes in its claims that state smart growth principles require more housing to be developed near transit areas (InterCap owns 25 acres on Washington Road near the train station), Muller says the possibility that InterCap could win on a claim that its plan satisfies an inherently beneficial use “would be a remote possibility, at best.”
“This was a case that involved a nonprofit,” Muller said. “It wasn’t a market developer, where only 20 percent of the units would be affordable. I think the courts would view that differently.”
Also, “when you have a project of the magnitude that InterCap is proposing, the courts have consistently said that although it is not permitted in the zone, when you have a project of that magnitude, that it’s going to change the character of the district, the zoning board doesn’t have the jurisdiction to do that — only the legislative body, or the council, has jurisdiction.”
