By Frank Mustac, Special Writer
The attorney for Hopewell Township on Monday described two affordable housing court cases that could affect the township’s ongoing case in Mercer County, as well as cases involving many other municipalities throughout the state.
Hopewell Township is in court to determine the number of low- and moderate-cost housing units that should be built to meet the municipality’s legal obligations. A judge will make a decision on that number following the trial portion of the township’s case scheduled to start sometime in September.
Late last year, the township formally told the court it could make available about 890 affordable units. However, the Fair Share Housing Center, a nonprofit affordable housing advocacy organization, determined the prospective need for affordable housing in Hopewell Township to be a minimum of 1,200 units.
According to Steven Goodell, the township’s attorney, a recent court ruling he referred to as the “gap decision” is going to be appealed to the state Supreme Court by the Fair Share organization.
The “gap decision” is a ruling rendered by the Superior Court Appellate Division on July 11 that says “municipal affordable housing obligations do not include a separate and distinct ‘gap period’ calculation,” according to the New Jersey League of Municipalities, one of the litigants in the case.
The appellate ruling overturned a decision issued in February by Judge Mark Troncone in Ocean County. Judge Troncone’s ruling concerned the “gap period,” a stretch of 16 years from 1999-2015, when no affordable housing regulations were approved by COAH or approved by the courts, according to Michael W. Herbert, another attorney for Hopewell Township.
COAH is an acronym for the Council on Affordable Housing, a state agency.
Had Judge Troncone’s ruling stood, it would have meant, essentially, that the number of affordable housing units towns in Ocean County and throughout New Jersey would be constitutionally obligated to provide could increase substantially.
“We are pleased to see this common-sense ruling by the appellate division,” Hopewell Township Mayor Kevin Kuchinski said soon after the July 11 decision.
“The gap decision was big, and let’s hope the Supreme Court doesn’t touch it,” Mr. Goodell said on Monday.
The second affordable housing case Mr. Goodell described on Monday is a trial in Middlesex County involving South Brunswick Township, in which Judge Douglas Wolfson decided all issues in favor of Fair Share Housing Center.
“It’s the first trial that we’ve had in the state,” Mr. Goodell said.
The South Brunswick trial is the first since new procedures were set in place after a state Supreme Court ruling in March 2015 was handed down affecting COAH and how local affordable housing plans are certified by the state.
“In Middlesex County, Judge Wolfson’s technique was to try to encourage settlement as quickly and as aggressively as possible,” Mr. Goodell said. “Most of the municipalities in Middlesex Counties did settle. South Brunswick did not. So South Brunswick had a trial.”
He said he thinks that Judge Wolfson’s roughly 100-page ruling against South Brunswick “was designed to strike fear in the heart of other municipalities that might be holdouts.”
Mr. Goodell said the judge’s ruling also cites an affordable-housing case decision from the mid-1980s that reads, in part, “If a municipality chooses not to voluntarily comply, it brings upon itself the potential that multiple builders will force it to comply. The choice is the municipality’s.”
“Regrettable, because South Brunswick failed to heed this warning, the elements of its affordable housing plan will not be those selected by its elected and appointed representatives, but instead will be deigned and implemented by third parties, a special master and the court,” Judge Wolfson wrote in his ruling.
Mr. Goodell explained the judge basically is “awarding a developer’s remedy and he’s saying that South Brunswick, because they did not plan for the appropriate amount of affordable housing, does not have the opportunity to continue planning. Instead, it’s going to be the court that orders the plan.”
Mayor Kuchinski interjected, saying, “I think playing into the judge’s decision was that South Brunswick had not been making good-faith efforts towards creating an affordable housing plan for meeting the court’s specific direction. I think in our case, we have actually done some work in meeting our third-round obligations and we have submitted a credible third-round plan.”
“There is no question about that,” Mr. Goodell said. “We’re in a much different place than South Brunswick.”
“There is no question we are not at their level, although it’s a good window on how testimony is likely to be viewed, because a lot of the witnesses who testified there are going to be the witnesses who will testify in Mercer County, including all the experts,” Mr. Goodell said.
