Edwin Schmierer: This would involve producing an affordable housing plan ‘from the bottom up’
By John Tredrea, Special Writer
Hopewell Township officials are pondering how to respond to a March 10 state Supreme Court ruling that COAH (the state Council on Affordable Housing) failed to meet its obligation to produce rules for towns in the state on providing housing for low- and moderate-income buyers.
The court ruled that COAH did not produce Third Round rules for the towns to follow. The Third Round Rules were due in 1999.
At Monday night’s Township Committee meeting, attorney Edwin Schmierer, the township’s affordable housing counsel for 10 years, gave an overview of the March 10 court ruling.
Many township officials, including several Planning Board members, and residents attended the meeting.
“The Supreme Court ruled that municipal affordable housing requirements will be regulated by the courts, not COAH,” Mr. Schmierer said, “unless COAH or the Legislature act quickly to restore a viable remedy that towns can use in satisfaction of their constitutional obligation” to provide affordable housing.
Mr. Schmierer said that, contrary to some press reports, the court has not dismantled COAH, which officials around the state have been calling severely dysfunctional for years. He added that, if neither COAH nor the Legislature “act quickly” in a way that satisfies the Supreme Court, “Hopewell Township must look to the courts for approval of the township’s affordable housing plan.”
The Supreme Court delayed implementation of its order by 90 days, to allow for an orderly transition to the new system, Mr. Schmierer said. After that, municipalities will have a 30-day window, from June 8 to July 9, to file a court action. This action, called a “declaratory judgment action,” would result in a judge being assigned to manage the township’s efforts to provide affordable housing.
Following the filing of a declaratory judgment action, a municipality will have no more than a five-month period in which to submit an affordable housing plan. Temporary immunity against builder’s remedy lawsuits will be in effect during that five months, which ends Dec. 15, 2015 at the latest.
A builder’s remedy lawsuit filed against a town that is not fulfilling its obligation to provide affordable housing could result in that town’s being forced, by court order, to construct that housing. Officials in the township have said that such a lawsuit could result in the construction of much more housing than would have taken place if a municipality had fulfilled its affordable housing obligation.
Mr, Schmierer said that a municipality that files a declaratory judgment action “must serve notice to all interested parties, including the Fair Share Housing Center (FSHC), the advocacy group that has been the lead plaintiff in the legal challenges to the COAH rules. The FSHC has developed its own affordable housing numbers and, according to the Supreme Court, having the FSHC in the case will ensure that the judge hears both sides of the argument.”
Mr. Schmierer said that, while a municipality is not required to file a declaratory judgment action, not doing so would expose it to a lawsuit from FSHC or a builder. He said that a Hopewell Township affordable housing plan that would go before a judge if a declaratory judgment action were filed would address such issues as soil conditions and the availability of public sewers.
Hopewell Township provides no public sewer service on it own. Areas of the southern section of the township, which borders Ewing, are served by the Ewing-Lawrence Sewerage Authority (ELSA). The Stony Brook Regional Sewerage Authority (SBRSA) provides service to Hopewell Borough and Pennington Borough and some township areas in between. The rest of the township relies on septic systems.
At Monday night’s meeting, Township Committeeman John Hart echoed comments heard in the township for years by saying that the soil conditions and lack of sewers in the township limit the amount of affordable housing that can be produced. Affordable housing is often constructed in densities that require public water and sewer service. COAH has said the township must produce over 1,000 units of affordable housing by 2025. Many township officials and residents have called that number absurd in the extreme.
Mr. Schmierer said the efforts the township has made to provide affordable housing would probably serve the township well in hearings before a judge. He noted the recent completion of the 70-unit Project Freedom development on Denow Road, which is considered affordable housing by the state.
The Township Committee agreed with Mr. Schmierer’s suggestion that township officials and consultants begin working on a response to the Supreme Court ruling. This would involve producing an affordable housing plan “from the bottom up,” as Mr. Schmierer put it, that could go before a judge if the township decides to file a declaratory action judgment.