By Jim Waltman, Stony-Brook-Millstone Watershed Association
Affordable housing. Those two words stir much emotion in New Jersey, ranging from fear and dread to hope and promise depending on who hears them. But no matter which emotions they elicit, most who’ve been following the state’s tortured efforts to promote affordable housing would probably agree on one thing: The process is a mess.
Under the state Supreme Court’s landmark Mt. Laurel decisions of the 1970s and ’80s, each of New Jersey’s 565 municipalities has a constitutional obligation to provide its “fair share” of the regional need for low- and moderate-income housing. Towns are required to provide a “realistic opportunity” for such housing, showing how their zoning and other actions would lead to its construction.
Towns not deemed to be in compliance with this mandate are vulnerable to “builder’s remedy” lawsuits, in which a developer can sue a municipality to discard and replace the town’s current zoning on a particular site if that developer promises to include a 20 percent set-aside of low- and moderate-income housing as part of its development.
In 1985, the state Legislature enacted the Fair Housing Act, which created the Council on Affordable Housing, a state agency to review and approve plans for affordable housing devised by the towns. Certification from COAH that a town was meeting its affordable housing obligations shielded the town from builder’s remedy lawsuits.
COAH released rules in 1986 and again in 1994 that spelled out municipalities’ obligations to provide for affordable housing and many towns prepared plans, received certification and were shielded from litigation. These rules are commonly referred to as the first and second rounds.
But since 1999, COAH, the New Jersey League of Municipalities, developers and affordable housing advocates have been locked in litigation over rules for a third round. In March 2015, the New Jersey Supreme Court removed authority for implementing affordable housing rules from COAH and gave it to the courts. Many towns in New Jersey are still preparing plans to meet their affordable housing obligations, which will then be reviewed and approved or rejected by the courts.
A central, yet still unanswered, question for towns is the size of their constitutional obligation. Fair Share Housing, a non-profit affordable housing advocacy organization, has asserted that more than 200,000 new affordable housing units need to be built in the state, and has issued recommendations for each of the state’s towns. Others, including many towns and the League of Municipalities, believe that these numbers are too high and unattainable, citing flaws in FSH’s methodology used to derive them. It remains to be seen if the New Jersey courts will accept FSH’s numbers as is, or if they will apply a different set of criteria to determine them. Until the courts determine the final obligations, it’s nearly impossible for towns to approve affordable housing plans.
Of course, development in the wrong places or without careful attention to water runoff, wastewater treatment and other issues can have dramatic consequences for water quality, environmental health and social well-being. The Stony-Brook Millstone Watershed Association has spent decades advocating against development that we believe would harm water and the environment and will be carefully reviewing affordable housing plans.
Some basics of sound zoning should guide Hopewell Township’s planning:
1. Only locate dense development where there is sewer, water and transportation infrastructure to support it, and
2. Don’t locate such development-inducing infrastructure in environmentally sensitive areas.
For the most part, Hopewell Township has a solid track record on these fronts, but its commitment to these sound planning rules could be put to the test.
As plans are developed to meet the affordable housing need, this planning must take environmental impacts into consideration. If the numbers provided by FSH are accepted by the courts, close to 16,000 new affordable units will need to be built in the 25 municipalities that make up the Stony Brook-Millstone Watershed. And if “inclusionary zoning,” in which four new “market rate” housing units are built for each affordable unit, that number would grow to 80,000.
Hopewell Township, for example, a town with approximately 6,200 housing units today, might need to add 5,000 new housing units to meet FSH’s suggested affordable housing obligation. Is it rational to expect a township that took more than 300 years to build 6,200 homes to build 5,000 new housing units in 10 years? How would development on that scale affect water quality, flooding, environmentally sensitive areas and Hopewell’s rural character?
Regardless of the outcome of the current legal wrangling over affordable housing, it is clear that Hopewell Township and other municipalities need to work carefully to meet affordable housing goals. After all, provision of affordable housing isn’t just a legal requirement, it’s also a moral obligation. Whatever construction is undertaken must be done in the most environmentally sensitive manner possible —with a commitment to avoid environmentally sensitive areas, to cluster new development into small “footprints” supported by appropriate infrastructure, to minimize the amount of undesired “market rate” housing that developers are allowed to build as part of any revisions to Hopewell’s zoning, and to control water runoff that can cause flooding and water pollution.
Jim Waltman is the executive director of the Stony-Brook Millstone Watershed Association, which he says works to keep central New Jersey’s water clean, safe and healthy. He lives in Hopewell Borough with his wife and two children.
