Unable to reach a settlement, five Mercer County Towns, including West Windsor, are involved in a trial that could result in the town being required to provide for almost 2,000 units of affordable housing by through 2025.
The trial, which also involves East Windsor, Hopewell, Lawrence and Princeton, is to resolve litigation brought against the towns by Fair Share Housing Center, a Cherry Hill-based nonprofit organization. FSHC wants the towns to provide for thousands of units of low and moderate income housing, claiming that they have not met their obligation to provide for affordable housing as required by the state constitution and the courts.
State superior court Judge Mary Jacobson is presiding over the trial, which started in January. She is not expected to rule until March at the earliest.
In 2015, the courts took control of affordable housing after disbanding the state Council on Affordable Housing. The court ruled that because COAH had failed to come up with rules specifying a methodology for determining each town’s affordable housing obligation, COAH’s functions were being taken over by the courts.
Municipalities were originally arguing to the court that they only had to provide for affordable housing need generated between 2015 and 2025, but they were dealt a serious blow when the state Supreme Court ruled last month that they must also account for the “gap period” from 1999-2015 when no COAH guidelines were in effect.
‘The towns who were fighting in court are outside the mainstream and now know that they will not be rewarded for further obstruction and delay.’
Gerry Muller, the township’s attorney for affordable housing matters, said the gap period ruling means West Windsor will have to zone for the building of more affordable units than they had hoped. “The magnitude of the increase? We don’t know,” he said.
In figuring out the town’s overall obligation, the court will probably have to look at prospective need and the gap period separately, Muller said.
He said that the trial will first decide on West Windsor’s affordable housing obligation from the present day to 2025, a fair share category known as “prospective need.” That process is expected to take place into March, after which the court will take up the issue of the gap period.
“It really involves, as we see it, a different set of periods,” Muller said. “Prospective need projects the number of new households while the gap period is a different analyses entirely that looks at lower to middle income households already formed.”
The sides are far apart in their estimation the size of West Windsor’s fair share obligation. FSHC has listed West Windsor’s fair share obligation at 1,977 units. At the outset of litigation, West Windsor submitted a fair share plan that provides for 1,000 affordable units through a combination of future developments, news units built as part of completed, and the rehabilitation of existing units.
The town has built more than 600 units contributing toward its overall obligation, and its plan calls for affordable units to be built off Bear Brook Road in the Princeton Junction redevelopment area and on property owned by the Princeton Theological Seminary off Wheeler Way.
“There are competing methodologies and the judge will decide on a number on the basis of the methodology,” said council member Alison Miller, a planner who also serves on the township’s affordable housing committee. She called FSHC’s figures “ridiculous.”
FSHC hailed the Supreme Court’s ruling as a “victory for tens of thousands of New Jersey families.”
“This decision clears away one of the main obstacles remaining in the fight for fair housing in New Jersey,” said Kevin Walsh, executive director of the FSHC, in a statement. “The towns who were fighting in court are outside the mainstream and now know that they will not be rewarded for further obstruction and delay.”
The FSHC says approximately 90 municipalities have reached agreements to fulfill obligations of more than 32,000 homes since the Supreme Court turned enforcement of the state’s fair housing laws over to the trial courts in 2015. Hamilton and Ewing have settled, and Dave Fried, the mayor of Robbinsville, has said that Robbinsville has also settled, pending Jacobson’s acceptance of a tentative agreement between Robbinsville and the FSHC.
FSHC said the trial before Judge Jacobson is important because it is expected to be the first countywide fair housing trial that does not end in a settlement. It argues that several Mercer County towns have among the highest fair housing obligations in the state.
FSHC has said that the Supreme Court ruling paves the way for more than 200,000 affordable units to be built throughout the state. But Michael Cerra, assistant executive director of the state League of Municipalities, told philly.com the courts were unlikely to embrace such a large number.