Plan will give Bordentown City legal protection from builders
By: William Wichert
BORDENTOWN CITY With developers watching and the courts waiting, city officials have taken steps in the last week to finalize the municipality’s affordable housing plan for the next 10 years.
The Housing Element and Fair Share Plan was adopted by the city Planning Board on Oct. 27 and then endorsed by a 2-1 vote of the City Commission on Tuesday to satisfy current and future state Council on Affordable Housing (COAH) obligations.
The plan outlines projections for the city’s housing stock and population, but more importantly, its strategy of meeting the COAH obligations will give the city legal protection from builders, who could sue the municipality and force developments that would satisfy outstanding COAH obligations.
State Superior Court Judge John Sweeney granted the city protection from this type of litigation, commonly known as builders’ remedy lawsuits, in a 2001 court order, but he later set a Dec. 20 deadline to submit the housing plan for long-term protection.
Within the plan, the city lays out its solution to address its existing COAH obligation to provide 31 affordable housing units for low- and moderate-income residents, and its projected obligation to build 14 units over the next 10 years. Other related COAH credits will reduce the city’s existing obligation to 23 units, the plan states.
The anticipated need for 14 units is based on the city’s expected population and job growth in terms of how they will affect new COAH regulations, which require municipalities to build one affordable unit for every 8 market-rate units and one affordable unit for every 25 new jobs.
Based on Delaware Valley Regional Planning Commission studies, the city’s population is expected to increase by 249 persons from 4,031 to 4,280 residents by 2015, according to the housing plan. Those studies also show that the number of local jobs will rise by 39 from 2,200 to 2,239, the housing plan states.
But the main issue of debate at Tuesday’s City Commission meeting was not the number of required COAH units, but where they will be built. The housing plan names three potential properties: the Clare Estates on Crosswicks Street and two smaller sites on Third Street.
The bulk of the COAH credits will be covered by age-restricted and non-age-restricted affordable units at the Clare Estates, where 16 of the 23-unit existing obligation and most of the 14 projected units will be located.
City Commissioner John Wehrman, the only member of the governing body to vote against the housing plan, took issue with the agreement with Clare Estates to build affordable housing there.
In an Aug. 17 letter to the Clarke, Caton, & Hintz architects, Christiana Foglio of Community Investment Strategies the owner of Clare Estates agreed to provide the affordable housing units, but also asked the city to consider allowing the company to build a 20-unit addition to the existing facility, the plan states.
Mr. Wehrman said he was not prepared to agree to that new addition, but City Attorney Richard Hunt said that project is a separate issue. "By passing this resolution (to endorse the housing plan), this does not agree to that 20-unit addition," said Mr. Hunt.
The main reason for Mr. Wehrman’s "no" vote, however, was the inclusion of the two Third Street properties in the plan, he said.
At the first property near Park Street, where an off-site parking area currently sits, the city plans to rezone the property as an "inclusionary zone," forcing potential developers to set aside 20 percent of housing on the property for affordable units, according to the housing plan. The zoning could permit 15 units, including three affordable units, according to the plan.
This type of zoning is permitted by COAH, but the city would not establish it until after Judge Sweeney approves the housing plan, the plan states.
Inclusionary zoning also would be established at the second site near Ann Street, where the .9-acre property contains a mix of residential and commercial uses, the plan states. Of the 20 possible units at the site, four could be allotted for low- and moderate-income residents, according to the housing plan.
The city Planning Board has already investigated this property as a potential redevelopment zone, but the city has yet to create a redevelopment plan, which would include inclusionary zoning at the site.
But to Mr. Wehrman, inclusionary zoning looks like something else. "To me, it sounds a little like eminent domain," he said. Mr. Hunt said inclusionary zoning is something that municipalities are allowed to institute.
Before the housing plan went up for a vote, Mr. Hunt stressed urgency of the situation. Bordentown City has COAH obligations to meet and legal protection to gain, and the housing plan would help the municipality do that.
"The consequences (of not endorsing the plan) could be significant, in that we do not have protection against builders’ remedy litigation," Mr. Hunt told the commission. "If we endorse this plan tonight, we do have protection."

