By Frank Mustac, Special Writer
The risk that Hopewell Borough may be susceptible to a lawsuit before the municipality updates its current affordable housing plan has prompted borough officials to take a legal measure of its own.
The Hopewell Borough Council voted 4-2 Monday to approve the filing in court of what’s called a “declaratory judgment action.”
The filing grants immunity to local governments, at least for five months, from a builder’s remedy lawsuit, according to Councilman David Mackie, who voted in favor of the measure.
Towns are able to file such actions no later than July 8 as part of new procedures set in place for municipalities to provide housing for low- and moderate-income buyers.
The procedural changes come on the heels of a state Supreme Court ruling back in March, affecting COAH (the state Council on Affordable Housing) and how local affordable housing plans are certified by the state.
“As I understand it, the declaratory judgment is requesting the court to review and certify the affordable housing plan that we would present,” Mr. Mackie said. “The question for us, being a small municipality with limited financial means, was how big a risk was there of a builder’s remedy lawsuit.”
Such a lawsuit, if successful, could mean a developer building market-rate-priced housing units along with affordable housing in numbers much greater than officials claim there is room for in the borough.
“The most important thing is that we’re absolutely committed as a community to preserving and creating affordable housing, and that means a diversity of housing options for all different kinds of people at different stages of their lives, of different incomes, different backgrounds, so that they can remain in the community,” Mr. Mackie said.
Hopewell Borough Councilwoman Debra Lehman said she voted in favor of filing the action because of the potential risks of not filing.
“I just believe this is unchartered territory,” Ms. Lehman said. “I think we should follow the mechanism that was created.”
Councilman Robert Lewis and Council President Schuyler Morehouse voted against filing the declaratory judgment action.
“The overall concept of what we’re trying to do in our community, to accept as many people and keep it as open a society as it can possibly be, I believe that after listening to all of our professional advice, this mechanism would not offer us any advantage,” Mr. Morehouse said. “I would rather put our very, very scarce resources toward a plan that would achieve our constitutional requirements as opposed to a mechanism that would probably not serve us any good.”
Hopewell Borough Mayor Paul Anzano said if he had the chance to vote, he also would have voted “no.” Under the borough form of government, mayors can only vote as part of the council in case of a tie.
“This is a superfluous legal mechanism put on us by the court that has absolutely no weight at the end of the day,” Mayor Anzano said. “It does nothing as far as I’m concerned.”
“This process that the court has is filled with so many unknowns and variables that, to go down that road, I don’t think it is at all fruitful as long as you’re pursuing an affordable housing plan that makes sense and recognizes our constitutional obligation,” the mayor said. “I believe our commitment to affordable housing here in the borough is unquestioned. We will do as much affordable housing as we can.”
Commenting on figures recently released by the Fair Share Housing Center organization claiming Hopewell Borough should provide 155 new affordable housing units, Mayor Anzano said, “I think it’s fantasy.”
“It’s not an accepted number by anyone,” the mayor said. “The courts have not validated it. That’s just a number with no legal merit.”
Back on June 22 in nearby Hopewell Township, the Township Committee there approved filing its own declaratory judgment action with the court, according to Hopewell Township Mayor Harvey Lester.
July 1, the Hopewell Township Committee also approved a cost-sharing agreement with hundreds of other municipalities in New Jersey to finance the preparation of a statewide fair share affordable housing analysis being undertaken at Rutgers University through Dr. Robert W. Burchell, according to a Hopewell Township document.
“By entering into this shared services agreement, we joined with 150 other municipalities to provide support for our declaratory judgment lawsuit by having our own affordable housing analysis in anticipation of countering the housing analysis of our adversaries,“ Mayor Lester said.
