The letter below was prepared for the Bernards Township Committee meeting on 09-11-18. Extracts were read and some other comments made during the public hearing on Ordinance 2405, and the full letter was emailed to the Township Clerk the next day.
To: Mayor and Members of Bernards Township Committee
From: Bill Allen
Subject: Affordable Housing and Rezoning of Mountainview Corporate Center
Introduction: You are preparing to adopt Ordinance 2405 to rezone one block in the Mountainview Corporate Center (MVCC) to allow multifamily dwelling units (MF DU). Your main purpose appears to be production of units that will help satisfy the township’s Mount Laurel obligation for affordable housing (AH). I oppose this ordinance for three reasons:
- It is bad land use planning. It is unwise to open the door to MF DU on township land south of I78, and on this tract in particular.
- The method for determining our AH obligation has not been established.
- It is wrong to sell commercial zoning to produce affordable housing.
I recommend that you table Ordinance 2405 tonight and notify the owners of MVCC.
My reasons follow. Because AH is driving this proposal, I will go there first.
Housing in Bernards Township: A drive around the township will show that Bernards has a greater diversity of housing than any municipality in our region, and we have lots of it. Data below are from a file maintained by our tax assessor:
- There are a total of 9560 residential units.
- Dwelling sizes range from 525 DU (dwelling units) with one bedroom (5.5%) thru two, three, and four bedroom counts to 272 DU with five or more bedrooms (13.3%).
- There are 416 DU assessed for less than $200 thousand and 43 DU assessed for more than $2 million, and we have everything in between.
Bernards was one of the first, perhaps the first, to accept a Mount Laurel fair share obligation in 1975. It enacted a responsive ordinance in 1976 and saw it approved by Superior Court Judge Thomas Leahy. Bernards has never failed to meet its Mount Laurel obligations as these evolved from that time to this.
Bernards has incorporated AH (affordable housing units as Mount Laurel regulations define them) in regular developments such as The Cedars and Society Hill, has made Regional Contributions to municipalities like Phillipsburg, and has helped finance AH units in institutions such as Ridge Oak and the VA.
With this excellent record, it is absurd to argue that Bernards must now scramble and make a deal with the Fair Share Housing Center (FSHC) to provide for some number of new affordable units. This to be done
- before there is an opportunity for interested parties—Township Committee, Planning Board, staff and advisors, members of the public–to consider how best to do this, and
- before there is even disclosure and review of the methodology that is used to determine this number.
Mount Laurel Fair Shares: At your meeting two weeks ago John Belardo tried to reassure us that the fair share number that you have agreed to is the result of lots of hard bargaining with judicial supervision, and is reasonable. This didn’t work for me. I left with an image of attorneys running around the court house and playing chaotic games with no rules.
The quotas for Mount Laurel affordable housing units (aka fair shares) are very important numbers. They should be based on rules for data and methodology that have been carefully reviewed and approved by responsible persons. At the end of the day these rules should be published and available to everyone, and then used by everyone.
I never learned the methodology used by COAH to determine fair shares during my time on the Township Committee from 1996 thru 2001. The system seemed to be working smoothly with no significant problems.
I was out of town in mid-August and learned about your MVCC proposal on August 21. Since then I have read about fair share proposals from four persons:
- Judge Mary Jacobson, who ruled in a case involving Princeton and West Windsor that is being used as a guide by Judge Thomas Miller.
- Richard Reading, planner used by Judge Jacobson, and now assigned as master planner by Judge Miller to determine fair shares for Bernards and other towns.
- David Kinsey, planner for Fair Share Housing Center.
- Peter A. Angelides, planner for Econsult Solutions Inc. (ESI), that is serving as consultant for Bernards and other towns.
Their estimates for fair shares are all different. A summary is in a report from ESI dated 03-28-18 that I received last week via an OPRA request. The total AH units projected for the whole state vary from 91,255 to 322,122. There is an obvious need for a standard set of rules.
In a letter on 02-09-18 John Belardo wrote that Judge Miller had retained Richard Reading to make “a fair share number for any Group Vicinage 13 town, including Bernards.” My OPRA request did not produce any report or estimates from Mr. Reading, and I conclude that he has not finished his work.
Because Judge Miller assigned Mr. Reading to make fair share numbers, it is reasonable to wait until he completes and submits his work. Then evaluate this data and methodology and accept or challenge his results.
Why don’t you do this? One answer is that an agreement with FSHC, that is approved by Judge Miller, will provide protection from builders’ remedy law suits to 2025. I understand that our current protection will expire at the end of this month without a new agreement, and don’t think this is a significant risk. Suppose that
- Bernards officials wait for Mr. Reading to submit his report, and then
- calmly, deliberately, and openly consider what to do, and
- the process continues for several months and leads to a responsible outcome, then
- what are the risks?
I doubt there are any developers waiting at the gates and ready to pounce when protection expires this month. Down the road CIP might try to do this, but they are not ready now.
Key for minimization of risk will be real action to meet our Mount Laurel responsibilities, not just words and foot dragging.
Rezoning of MVCC: The land south of I78 has for many years been zoned for the uses it has today: office buildings and single family houses on large lots. There are also large tracts owned by the township and county for recreation and open space. There are some homes on smaller lots that were built before zoning regulations were adopted. During my 50 years in town I have never heard a proposal for multi-family units until now.
Except for some large new homes and new streets like Emerald Valley and Van Holten, the area has changed little in 50 years. I believe residents like it the way it is. Zoning regulations are most easily defended when they have been in force for many years and are viable for the permitted uses. These lands meet these tests.
Insertion of multi-family units into this mix on MVCC land will change the picture significantly and put current zoning regulations at risk. The tax map shows three lots of 21 acres with access to Mountain Rd and one of 65 acres with access to Martinsville Rd, all near MVCC. When the township must begin planning for a new batch of AH, a developer may come forward with a plan to build multi-family units at high density on one of these properties, some of which will be affordable.
Township officials may argue that the proposed development is not suitable because the land is not in the sewer service area. The developer may counter with a proposal for a large septic system or package plant, and he will probably prevail in court. I can even imagine a judicial ruling that the sewer service area be expanded to include the proposed development.
Today these future actions may be regarded as extreme, but so may your current proposal in Ordinance 2405 for MVCC. It will be better to not open the door to MF DU and risk these outcomes.
- I don’t know why the most southern lot in MVCC has not been developed. I do know that there are vacancies in the office buildings on Allen Rd. And there are several large office buildings diagonally across the I78 interchange in Warren. So maybe there is a glut of office space that won’t be worked off for decades.
If careful analysis confirms this, then the first alternative considered should be conversion to R-3 regulations that govern the nearby Emerald Valley and Van Holten communities. Use septic systems and save the sewer capacity for something else.
- The subject lot is at the top of a hill, at the end of a 0.7 mile road, and surrounded by woodland. Its isolation makes it a good place for a conference center.
- This isolation makes it a poor place for what is being proposed on it. I worry most about the children in low and moderate income households.
After school activities are a very important part of school life in Bernards. Parents or other household members spend a lot of time picking up students in the afternoon, or driving them to and from some evening event. Children, who live in the units proposed for low and moderate income households, are less likely to have a household member with a vehicle who can perform this function.
Some of these children will be cut off and denied the full school experience to which they are entitled.
Recommendations:
Near Term:
- Table Ordinance 2405 and advise the MVCC owners of this action.
- Advise Judge Miller and FSHC that you will wait to see and evaluate Mr. Reading;s fair share estimates, and then decide how to proceed. OR
- Settle with FSHC in accord with the present agreement and number of AH, with the exception that you will not proceed with the MVCC proposal, and that you will determine how best to provide the 62 units it would have provided.
Longer Term:
- Review and evaluate the fair share estimates in the Reading report when it is received, and the facts and methodology on which these are based, and engage the Planning Board and public in this process.
- Design a process for buying existing low cost DU via bids, writing them down, and putting them back on the market for sale or rental as Mount Laurel affordable units. Determine the financing required for this.
My rough estimate from actual 2017 sales is an average write-down of $88K per unit. I think a bidding process would do better, particularly if most purchases are made during the down part of a home sale cycle.
- Invite CIP or its successor to make an appropriate proposal for the quarry land.
Mount Laurel Doctrine
The case called Mount Laurel I, that was decided in 1975, followed several years of court rulings in exclusionary zoning cases. The NJ Supreme Court tried to provide guidelines for these disputes by promulgating the principle that developing municipalities, that had welcomed business ratables—as Bernards did with AT&T–had to provide for its fair share of housing that would be affordable for low and moderate income households. The Court left the details of implementation to the municipalities.
The Court thought that zoning changes, that allowed more DU per acre and removed restrictions against garden apartments and town houses, would produce affordable housing. History shows that this was not enough. Developers continued to build housing for the highest prices the market would support.
Mount Laurel II in 1983 gave us the builder’s remedy for projects in which the developer would provide some fraction of affordable units–initially 20%–in return for higher development density. I don’t know the details, but I believe The Cedars, Society Hill, and The Hills were each approved with affordable units produced by the builder’s remedy.
I never liked the builder’s remedy, but never had to deal with it when I served on the TC in 1996 to 2001.
You have entered new Mount Laurel territory by selling zoning to get affordable housing. This began with Dewy Meadow. One may argue that the land use issues there favor a conversion from retail to residential use.
Not so with the proposal for MVCC. I see no compelling land use argument for changing from office development to residential. I believe that the argument of no future demand for office space is weak.
We don’t need more housing units. We do need more units that are affordable. We have a financing problem, not a land use problem. We need funds to buy units at market prices and then write them down to affordable prices. I propose that you work with your advisors and determine how best to do this to meet our current Mount Laurel obligation.
State action is required for the long term. If the state, acting thru its elected representatives, decides that some of its residents need subsidized housing and that sufficient quantities cannot be provided by land use mechanisms currently employed, then the state should provide some or all of the funds necessary to implement the buy-and-write-down strategy proposed here. Bernards and other municipalities like us should not bear the total burden.
Wrapup: Mount Laurel I began what we call the Mount Laurel Doctrine. I fully supported it in 1975. The land use tools we used initially to implement this doctrine are worn out in towns like Bernards. We need a new doctrine and new tools. The buy-and-write-down strategy proposed here can be one of these.
We should engage the community and our state representatives to formulate and implement this new Mount Laurel Doctrine.
Bill Allen 09-11-18
This is revised and 2nd version of this letter today.