Plainsboro and West Windsor townships last month approved actions designed to strengthen their affordable housing programs and avoid the possibility of leaving the townships open to costly high-density builder’s remedy developments.##M:[more]##

In August, a state Appellate Court rendered a decision in a case in which the New Jersey Builders Association (NJBA) challenged authority of the state Council on Affordable Housing (COAH) to extend towns’ protections from builder’s remedy lawsuits.

The appeals court unanimously affirmed COAH’s power to grant extensions, but also required that the agency write new rules governing such decisions.

The court ruled that communities must publicly notice requests for extensions of their affordable housing plans, and allow for a review of their compliance with state regulations. On November 22, Plainsboro approved a resolution to conform with new COAH rules resulting from the decision.

Under the builder’s remedy, a judge grants a developer the right to circumvent local zoning and build high-density developments that provide some affordable housing. The Fair Housing Act (FHA), approved by the state legislature in 1985, gave COAH the authority to make municipalities immune from such lawsuits by certifying that a town has provided for its fair share of affordable housing.

Between 1999 and 2002, COAH extended the protection for 46 towns, including Plainsboro, because it had not yet released the methodology for determining the latest round of numbers listing the amount of affordable housing for which communities are required to provide. NJBA challenged COAH’s ability to extend the protections and filed a complaint with the courts.

Under the resolution approved by Plainsboro, the township authorized the submission of its current affordable housing plan to COAH for review.

The township also committed to updating its affordable housing plan to include any new affordable units required when COAH releases its new requirements. The township will have one year to update the plan from the date the new fair share numbers are released.

“This (resolution) was just a procedural thing we have to do to support the extension,” says Mayor Peter Cantu. “I suspect there won’t be any problems.”

Meanwhile, Cantu says the township is looking at the formulas recently approved by COAH and is working to determine Plainsboro’s obligation and the methods of meeting those affordable housing requirements.

Last month, COAH approved a new method for determining a municipality’s affordable housing obligation called “growth shares.”

The growth share method requires towns to allow one unit of affordable housing to be built for every eight market-rate residential units approved or every 25 jobs created through approvals of commercial development. The obligation is retroactive to any certificate of occupancy granted since January 1, 2004.

Under the old system, every town in the state was assigned a number of affordable units based the level of past growth.

Plainsboro was the first municipality in New Jersey to have its affordable housing program certified by the state in 1995, and the first to have its certification extended in 2001.

Plainsboro’s affordable housing requirement between 1989 and 1999 was determined to be 247 units of affordable housing. In 1995 COAH certified that the township had provided for 257 units. Since then the township has made provision for an additional 155 units to apply toward its future obligation.

The next step is a determination of the number of units that will be required under the growth share formula. “This is something we’re taking very seriously, and something that other towns would be well-advised to take seriously as well,” Cantu says.

WW Impact Fees

In West Windsor, township council passed an ordinance amending the amount of money it can charge developers for affordable housing impact fees.

The measure, unanimously approved on November 29, increases the amount that developers of residential and commercial developments must pay to the township’s affordable housing trust fund.

The fee for developers of residential housing in all township zoning districts was increased from .5 percent to 1 percent of the equalized assessed value of the project.

For commercial builders, the affordable housing impact fee was increased from 1 percent to 2 percent of the equalized assessed value of the development.

The ordinance also allows the township to enter into agreements with commercial developers to raise additional affordable housing fees. Such agreements can include tax abatements, increased square footage, and increased impervious site coverage in return for an increased fee. Any agreement would be subject to approval by COAH.

The ordinance also requires impact fees to be paid by developers expanding existing commercial structures. The fee would be 2 percent of the increase in the equalized assessed value of the improved structure.