Tuesday, November 21, 2017

More on the Affordable Housing Crisis


(These are the views of Councilman Gene Fitzpatrick and do not necessarily reflect opinions of Denville Towsnship’s Administration.)

There is a very active group, understandably upset, over the potential of a development on Casterline Road. I applaud them for their activism.  Unfortunately, the issue is extremely complicated which is why I feel as a Councilman, I have to work much harder to communicate all the details of what’s happening.   The reason for the development is essentially because the Township has a constitutional obligation to provide for the reasonable opportunity for the creation of affordable housing. The historical aspect of the constitutional mandate is another very complicated issue.  I have outlined that situation in a previous post in April. (See https://councilmanfitzpatrick.blogspot.com/2017/04/summarizing-denvilles-affordable.html)

However, specific to the Casterline development, there are some flyers and a website (Ironically entitled the ‘Naked Truth’ which is leaving out A LOT of information ).  In response, I want to try and clarify why we are in the situation we are in.  I believe by the time the Council will actually vote for the rezoning change in the area to provide for the development I will have already left office; however, it’s important for residents to know the issue.  I have offered to speak with this group several times but have not been invited. I will try again and sign up for their newsletter.   Again, I am hopefully a reasonable solution can be found but I warn residents to be careful what we ask for.  Some of the suggestions by this group will most likely lead to massive and costly litigation for Denville as well as even more higher density development that Denville would have no say or influence in.  That risk is too great.  I caution residents to question the credibility of someone passing our flyers to you at Acme the same way you’d question Denville’s Council.  The Council has no vested stake in approving developments.  The Council gains nothing from entertaining this issue except that we have to try and make the best decisions for the whole town and in doing so protect our town. 

For years Denville had done its part to provide affordable housing through our township.  We have always obliged to the various different formulas that have been provided/changed/revised by the state.  We actually enter the current round with a slight surplus of affordable housing credits.  The Fair Share Housing Center, a lobbying group and our adversary in the courts has proposed that NJ need many more affordable housing options a specifically nearly 1500 in Denville (which actually would mean 6000 total homes added in Denville, if you include the market rate units in that calculation. That’s double the town’s current housing).

With that, Denville and other municipalities resorted to court because the State legislature was unable to approve and develop appropriate guidelines for assigning an affordable housing obligation for each municipality.    Last year, the court asked Denville to submit a proposal based upon calculations performed by our expert on how many new affordable housing units we were obligated for and how we would propose to accommodate the construction of these units.  Since several other developers are part of that lawsuit, Denville had to provide solutions that would show some reasonable attempt at working with these interveners.  Unfortunately, since it was a court matter, the governing body could not open those discussions to the public.  The Council and Planning Board supported some potential ways to accommodate the developers, knowing that they were theoretical.  Now, we are trying to determine and negotiate the best way to allow for responsible and smart development in various areas.


Demographics studies show how much more development will cost on our resources,
Nobody is disputing that.  Unfortunately, the courts have continuously ruled that they are not interested in how affordable housing affects those resources.  Sad, but true.  Therefore, we are unable to use the impact it will have on our school system or other resources as a defense. 


Several developers have joined the Fair Share Housing Center, positioning themselves as part of the “solution” to develop the quantity of homes the FSHC is asking for.  In the past developer’s often would file builders remedy lawsuits which accused municipalities of unconstitutionally preventing them for being able to construct affordable housing.  These lawsuits not only cost municipalities millions to dollars in court fees but almost always resulted in larger, higher density developments where the municipality was completely removed from the planning process. As well the courts in NJ have almost always sided with those developers.  A way to avoid those lawsuits is to abide by the courts process and continue to “move forward” with a working path to smart development.  This is what Denville has done.

The moment Denville says “no” to a builder/develop, it is almost guaranteed that a developer would claim Denville to not being compliant in this path forward.  If the court agreed, Denville would lose ALL immunity to the Builder Remedy lawsuit.  That means,  ALL OF THE OTHER DEVELOPERS SEEKING HOUSING PROJECTS IN TOWN WOULD FOLLOW SUIT.  That could cost Denville MILLIONS OF DOLLARS IN LEGALS FEES and RESULT IN MASSIVE DEVELOPMENT.  Many times more that what we are entertaining now.


1. A developer needs to be interested in that.  Despite this nonsensical system, it is still a free market.  I’m not a fan of townships building housing, that’s for the private sector.  No developer has showed interested in that yet. Other municipalities who have constructed 100% affordable developments have had to pay for them with tax payer monies at an average for $225,000 to $250,000 per unit (Public Entities are required to pay prevailing wages).
2. Let’s call it what is is, that’s a “project” with all the connotations intended.  The point of affordable housing is to give people of different economic statues the opportunities and resources of a preparing community.  We’ve done a great job assimilating affordable housing, I don’t think we should be building 1 massive complex for just affordable housing.  Those who need affordable housing should share the same access and resources as others.   A great example of that is the development on Old Boonton road and the smaller one on Church Street. 

3. It’s extremely costly.   Some people will say that it’s less than the cost it will cause our schools, roads, etc… but I disagree and don’t think a municipality should front a cost like that.  That’s millions of dollars. It’s irresponsible.  My opinion.

4. Developers would still sue.  At this point even if the township had planned some lagging housing project, the intervener developers with other housing developments would still sue and potentially have a good case against us.  Their projects are shovel ready and would provide housing within a year or 2 vs. the several years and large cost hurdles to build a development.


There are maximum caps for Senior Housing and we’ve already reached our quota for those types of housing requirements and it would not satisfy any of our current affordable housing requirements.  


Not yet.  The developer originally was looking for around 230 units.  The Mayor and administration have been working to hopefully negotiate, revise, plan for something considerably less.  The last presentation from the developer was showing around 65 units with a number of 3 bedrooms.  That was very concerning but I am really hopeful that when it comes back to the council, there will be a more promising proposal.  Most likely, it will be after I am out of office though.

There is a very active volunteer group that is extremely against anything being developed there.  I applaud their activism and hear them.  However, I’d be very cautious to a solution that denies that developer from building a small property.  As stated before, that would result immediately in costly lawsuits and MASSIVE development throughout all of town.    REMEMBER:  Townships have not won those lawsuits in NJ.  Not one that I know of. 


In the past, all of those matters were shared with our planning board, environmental boards, etc…  A group of volunteers to help this current situations will probably not do too much now but if there are more threats ahead, it is something to consider.  That would be the prerogative of the Mayor and Administration.


Not a lot of good ones. Here’s a breakdown:

Probably not that simple.  Voting it completely down, I can almost guarantee will result in the developer claiming Denville is not complying which would make Denville lose immunity to all developer lawsuits.  Some people say “We shouldn’t back down and we should fight”.  That’s a nice thought but in the history of this issue I don’t know of any municipality that has won.  So we’d end up spending millions on legal fees and end up with more housing then we are currently trying to settle on.   Those risks are far too costly.

That’s been my approach.  I’m curious to see what the Mayor and Administration can work out.  Most likely some development on Casterline and the other areas but less than would result if we lost immunity from builders remedy.

Many have been doing this and I think this is our only hope.  There is no way local elected officials are going to risk their town being overdeveloped as a result of court rulings.  But if the legislature shows some sign of taking the issue back and come up with guidelines for affordable housing, it could entice local officials to be rejecting settlements too soon.  

Here are a list of several assembly bills that should be debated in the NJ Assembly.
Write current Speaker of the Assembly Vincent Pietro and incoming Speaker, Craig Coughlin and ask them to enable open debate on this pieces of legislation.

Assemblyman Vincent Pietro
One Harmon Plaza, Suite 205
Secaucus, NJ 07094

Assemblyman Craig Coughlin
569 Rahway Avenue
Woodbridge, NJ 07095

A4667 Establishes "Affordable Housing Obligation Study Commission; 

S3081 Establishes "Affordable Housing Obligation Study Commission; 
A5025 Requires COAH to administer affordable housing obligations of municipalities based on statewide obligation; 

A5027 Requires COAH to calculate affordable housing obligations on Statewide basis;

A5028 Establishes additional factors for municipal adjustment used in calculating fair share affordable housing obligations; provides population-based cap for these obligations; 

A5029 Prohibits affordable housing obligation exemptions for urban aid municipalities; 

ACR249 Proposes amendment to New Jersey Constitution to prohibit exclusionary zoning and clarify municipal obligations regarding affordable housing construction;

ACR250 Proposes constitutional amendment to require State-wide calculation of affordable housing obligation.