I stumbled upon an Internet site the other day that offers a startling, candid view of the housing-development wars from the viewpoint of the developers. The site, "Land Use Law & Development Strategies," was put together by a law firm headed by Henry A. Hill Jr. (www.nj-landuselaw.com).
Hill is the attorney who represented Toll Brothers, the builder that won the approval of the New Jersey Supreme Court three years ago for construction of 1,165 town houses, apartments, and single-family homes on a 293-acre tract in West Windsor.
The township had opposed the project vigorously, but Hill prevailed with the help of the "builder’s remedy" that the court created in 1983. The remedy enables a builder to override local zoning restrictions when a development will include court-mandated affordable housing as well as market-priced units.
West Windsor complained that it had a better plan, one that would include multifamily buildings. Toll and its lawyer responded that there was little buyer interest in such housing and that the town zoned for it knowing it would never be built. The court agreed unanimously: "Zoning ordinances that rely on housing units for which there is little demand do not provide realistic opportunity for the development of affordable housing." The Toll plan included 175 affordable units, scattered through the development.
Score another victory for Henry Hill, who has been dubbed the most feared lawyer in New Jersey. He is an unapologetic and forceful advocate for developers. His firm, Hill Wallack, based at 202 Carnegie Center, has brought more than 60 Mount Laurel exclusionary-zoning lawsuits, resulting in the construction of many large developments, including the Hills in Bedminster, with 5,000 units at the interchange of Routes 78 and 287.
A graduate of Amherst College and Stanford Law School, Hill, 65, is reportedly more interested in the challenge of litigation than in the plight of the ill-housed poor, although several other members of his 50-lawyer firm got into this field to do good in addition to doing well.
Hill’s website, aimed at developers and their attorneys, contends that anti-growth sentiment has prompted large-lot rezoning, arbitrary denials of development applications, sudden condemnations of land for open-space preservation, and ordinance revisions to block applications after they have been filed.
Hill’s advice to colleagues is direct, specific and hard-ball. First make sure that what you ask of a town you are entitled to get. Do not put yourself in the position of needing variances. Keep waiver requests to a minimum.
Second, do not present testimony that is not legally required. Do not, for example, try to persuade a town board that development will not raise taxes, that it will attract few families with children to be educated, that the architecture will be attractive. "These are contentious and irrelevant issues that will only delay the application," Hill advises.
He divides strategies into offensive and defensive tactics. The No. 1 offensive strategy, as he showed in West Windsor and Bedminster, is to file an exclusionary zoning suit and obtain a builder’s remedy. More than 200 of the 566 New Jersey municipalities are vulnerable to such suits. "Contract for land in one of them, decide what you would like to build, and sue." Wham, bang. Is this guy tough, or what?
No. 2 is to focus on a category of development defined as a "reasonable accommodation" under federal law, such as a nursing home, extended-care facility, or residence for Alzheimer’s patients. "Enforce your right to build it in the courts."
No. 3: "If you can show that a municipality has intentionally discriminated against families with children to cut school costs, sue using the federal Fair Housing Act and state law, both of which prohibit discrimination on the basis of ‘familial status.’"
The site has lots of advice on defensive tactics. How to obtain approval for septic tanks from a hostile board of health. How to block open-space condemnation when the asserted need for the property is a pretext to stop the development.
I especially admired the section on down-zoning, a tactic in which a town raises the minimum lot size to a point at which development is financially unfeasible. It is illustrated with a photograph of three young children, two girls and a boy, in Medford, a town on the edge of the Pine Barrens, not far from Ongs Hat and Red Lion in South Jersey. They are adorable. They are standing by the side of a road holding up signs saying, "Don’t steal my college fund," "Don’t steal my inheritance," and "Don’t steal my mommy’s land."
This was in 2001. The town planning board was fixing to increase the minimum lot size in a so-called Agriculture Retention District from four acres to 10. More than half the existing lots would become non-conforming. An owner would need a variance to add a patio or a porch. The owners claimed land values would drop by 75 percent.
Proponents of the revision said the land was designated for no growth under the State Plan and that, anyway, the area was too congested. Doesn’t look congested in the picture. Hill Wallack describes the demonstration as "community-based ‘grass-roots’ opposition."
Whether you are for or "agin" Henry Hill and the developers he represents, his website is worth a visit. As he says, of environmentalists and no-growth advocates, "Know your adversary."
James Ahearn is a contributing editor and former managing editor of the Record of Bergen County. This column appeared originally in the Sunday, May 1, edition, and has been reproduced with permission of the Record.