In what could be a landmark ruling, Superior Court judge Mary Jacobson has put numbers on the “affordable housing” obligation that towns must allow within their borders, ordering Princeton and West Windsor to allow developers to build 753 and 1,500 new homes respectively. The ruling also has implications for the entire state, as Jacobson wrote that New Jersey should build 155,000 affordable housing units by 2025. This number could serve as a basis to establish the affordable housing obligations of more than 100 other towns that are involved in similar lawsuits.
The March 8 ruling was the result of a suit by the nonprofit Fair Share Housing Center (FSHC), which sought to force the towns to allow affordable units to be built. However, the roots of the dispute go back almost half a century.
In 1975 New Jersey’s supreme court ordered towns throughout the state to stop exclusionary zoning practices and allow housing to be built that is affordable to low and middle-income residents. But in the 43 years since then, housing in the state has only grown more expensive as political and legal battles have raged over how to interpret and implement the Mount Laurel Decision. As of last year, the median home price was $299,000, and the median rent $2,069, out of reach for most working-class residents.
Solving this problem has proven daunting for the courts. “Providing suitable and affordable housing for citizens of low and moderate incomes” remains “one of the most difficult constitutional, legal and social issues of our day,” Jacobson wrote in the ruling, quoting earlier judicial attempts to resolve the problem.
The numbers Jacobson arrived at were far higher than the towns wanted, but lower than housing advocates had sought. The West Windsor number split the difference between what the advocates wanted, 2,000, and the 1,000 units that the township requested.
In the 217-page ruling, Jacobson was transparent about how she reached the numbers, admitting that setting quotas could never be precise, but stating that setting a requirement was the most likely way to achieve the goals of having affordable housing built. She used a complicated formula that incorporated data brought up by both sides during the six-month trial.
In trial, the townships and the League of Municipalities argued that the housing market would not absorb the amount of housing, an assertion that Jacobson rejected. Both sides brought a bevy of experts to defend their positions: the affordable housing advocates brought Jeffrey Otteau (U.S. 1, June 11, 2014,) the Matawan-based real estate appraiser, and four other planners and experts. The League of Municipalities called Robert S. Powell, a managing director for Nassau Capital Advisors and a Princeton-based real estate consultant.
West Windsor and Princeton are the only two towns in Mercer County that had gone to court — at great expense — to establish affordable housing obligations; the rest had settled with the FSHC.
The ruling could have an immediate impact on West Windsor, where one of the largest undeveloped parcels of land on Route 1 is located at the northeast corner of Route 1 and Quakerbridge Road, the 653-acre tract that had been home to the American Cyanamid research center. The current owner, the Howard Hughes Corporation, has proposed a mixed-use development with up to 2 million square feet of offices and retail space, and 2,000 dwelling units, a portion of which could be used to satisfy the newly stated requirements.
But the entire property is zoned for more than 6 million square feet of research, office, and light manufacturing — not for housing. Any rezoning would require the township council to pass an ordinance.
More than 150 residents showed up at a Howard Hughes presentation to the West Windsor Planning Board last May, most of them opposed to the project. One major concern: The impact of the proposed housing on the township’s highly rated public schools.
While representatives of municipalities and development companies are still digesting the 217-page ruling, some believe that it will have considerable impact not just on the two towns in the suit but on other towns that still have to set their affordable housing goals.
At New Jersey Future’s annual redevelopment conference in New Brunswick on March 9, the day after the ruling was announced, the reaction was positive. When asked for a comment one land use consultant, who works on projects similar in scope to the one proposed by Howard Hughes in West Windsor, responded by simply smiling and breaking into a brief dance.
But the dance may not easily turn into a cake walk. West Windsor officials have already said that the township’s obligation can be met without involving the Cyanamid site. West Windsor Mayor Hemant Marathe told the WW-P News (a sister publication to U.S. 1) that by his preliminary calculations, the town currently has credit for between 1,000 and 1,200 units toward the 1,500-unit mandate, meaning the town must still provide for up to 500 new units. If these units are built by developers who subsidize the cost of the affordable units with new construction, it could mean more than 2,000 new units of housing in the town. That’s an increase of about 20 percent to the township’s current inventory of some 10,000 units.
“I was a little surprised by the number,” Marathe said. “The expert appointed by the court had given a number of 1,000 units, so it was a slap in the face of the court’s own expert more than anything else.” Marathe said he was also dismayed that the township was forced to pay for the court-appointed expert, and then the judge went on to ignore the expert’s testimony. “These lawsuits are very expensive to us. Why go through the charade and a long trial if you are going to ignore your own expert?”
The Fair Share Housing Center may yet appeal parts of the ruling, but praised it as a step in the right direction. “Judge Jacobson’s decision recognizes the very substantial need for homes for working families and people with disabilities in New Jersey,” said FSHC Executive Director Kevin Walsh in a statement. “This ruling sends a strong message to any town still seeking to exclude working families that they won’t succeed.
“While we are still examining the impact of this decision and disagree with some of the ruling, this decision is the latest development in a process that is laying the groundwork for tens of thousands of new homes to address New Jersey’s housing affordability crisis.”
At the New Jersey Future redevelopment conference a panel discussion on affordable housing attracted a standing room only group of more than 60 attendees. Panel moderator Lori Grifa, former commissioner of the Department of Community Affairs and now a partner at Archer & Greiner, the law firm, praised the thoroughness of Judge Jacobson’s decision. “The idea that there would be no obligation has been retired. The time for practical solutions is now.”
The ruling, she added, is “a game-changing decision.”