HOPEWELL BOROUGH: Borough opts out of affordable housing court process

By Frank Mustac, Special Writer
HOPEWELL BOROUGH — Due to mounting court costs, Borough Council members voted to remove the municipality from the affordable housing litigation process that it and many other towns in New Jersey are currently enmeshed.
As a result of the council’s decision on Nov. 5, Hopewell Borough is notifying the court in Trenton that it wants to opt out what’s called a “declaratory judgment action.”
“To continue with the court matter is extremely expensive and the expenses are mounting,” Mayor Paul Anzano said by phone on Nov. 10. “Originally we were told that to participate in the court action it would cost about $5,000. We now have bills in excess of $10,000, and they’re still coming in.”
“Council is 100 percent behind having more affordable housing in the borough,” the mayor said. “We’re not getting out because we don’t want affordable housing. We’re getting out because the court process is so cumbersome and expensive.”
“We just can’t plan as a municipality with those types of expenses,” Mr. Anzano said.
By filing a declaratory judgment action back in July, Hopewell Borough became of party in a court case in which Mercer County Judge Mary C. Jacobson will decide how many affordable housing units have to be built in town. In turn, Hopewell Borough was also granted temporary immunity by the court for least five months from builder’s remedy lawsuits.
Such a lawsuit, if successful, could mean a developer constructing market-rate-priced housing units, along with affordable units, in numbers much greater than officials claim the borough can sustain, taking into account available space for additional public school students, existing sewer capacity and other infrastructure constraints.
“The Council has come to realize that there is a risk when it comes to builder’s remedy lawsuits, but it’s minimal to us. It’s remote, let’s put it that way,” Mayor Anzano said.
The largest vacant property currently for sale in the borough, the mayor said, could accommodate about 25 market-rate and affordable housing units combined. In a builder’s remedy lawsuit situation, he said, a developer could be awarded the right to construct 4 market-rate units for every affordable unit built — meaning a total of 20 market units and 5 units for low- and moderate-income buyers or renters.
Mayor Anzano said the borough will continue assessing the municipality’s affordable housing needs. The planning board, he said, is currently reviewing the housing stock in town and determining the amount of lost-cost or affordable housing available right now.
On Nov. 4, a day before the Borough Council met, the Planning Board received an update from professional planner Joanna Slagle of Banisch Associates in Flemington regarding the affordable housing court case. She told Planning Board members that her firm is preparing a document to be delivered to the court by a Dec. 7 deadline.
The one-page matrix, or plan outline, as she described it, indicates that Hopewell Borough can meet its constitutional obligation for affordable housing with a total of 16 units available in town for low- and moderate-income buyers and renters. That document will not be submitted to the court now that the Hopewell Borough is requesting Judge Jacobson dismiss its case without prejudice.
In Hopewell Township on Nov. 9, Township Attorney Steven Goodell gave Township Committee members an update on the township’s own declaratory judgment action affordable housing case, also being heard by Judge Jacobson.
Last week, he said, the judge heard oral arguments on several legal issues from attorneys for all the towns in Mercer County that filed declaratory judgment actions and attorneys from all the registered interveners, including the non-profit Fair Share Housing Center organization.
Hopewell Township’s affordable housing attorney is Kevin Van Hise of the law firm Mason, Griffin and Pierson. Mr. Goodell attended the oral argument session as an observer.
“I will say that it was a highly technical argument,” Mr. Goodell said. “It gets pretty complex. By the end of it, Judge Jacobson was kind of frustrated that things were not becoming clear in a way she had hoped they might. In other words, there was very little consensus about what laws should be applied or how they should be applied to certain circumstances. So she did not issue any decisions there at the time and she has not since issued any decisions on those issues.
“My guess is that on the substance of those issues, she’s going to really fold that into any full hearing, plenary hearing on methodology that she may have, a hearing where all the experts would be able to testify and she will get the benefits of them.
“In the meantime, my sense is that she’s going to not put pressure on the municipalities but at least encourage the municipalities to continue to refine their plans. Municipalities need to submit outlines of plans by Dec. 7.”
In October, Ronald Morgan, attorney for the Hopewell Township Planning Board, said Frank Banisch, the township’s professional planner, was preparing outlines of the board’s three affordable-housing proposals. The first proposal takes into account that 500 affordable housing units would be built in the township over the next decade or more. A second proposal is for 750 affordable units and a third is for 1,000 units.
Mr. Goodell said Hopewell Township has already done what it needs to do to create its outline and just needs to formalized the documents.
“That will be ready to submit by Dec. 7,” he said. “The judge (also) will entertain orders for temporary immunity to extend the existing immunity (from builder’s remedy lawsuits) through Dec. 18. At that point she will be reviewing the plans (outlines), and if she determines that the plans have been prepared in good faith and offer a good faith opportunity for the towns to comply with whatever obligation she’s going to come up with, then she said that she would consider extending immunity into the new year,” Mr. Goodell said. 