Despite hard feelings over InterCap’s latest ad campaign and calls for a fiscal impact analysis, the West Windsor Township Council moved forward with the next step of redevelopment.
By a vote of 3-2, the council introduced two ordinances on August 1 that will, if adopted, effectuate the terms of its settlement with InterCap Holdings reached last month and avoid continued litigation.
Now that the council has introduced the ordinances, the Planning Board has a 45-day period to review the ordinances and make any recommendations to council about them. That meeting is expected to take place on Wednesday, August 17. Once the Planning Board is done with its review, the council will hold a public hearing and possible adoption of the ordinances sometime in September.
Had the council voted against introducing the ordinances on August 1, it may have had to spend more township money to defend itself in court against InterCap, which filed a letter to state Superior Court Judge Linda Feinberg asking her to reinstate its transit village lawsuit against the township after the council originally held off on introducing the ordinances on July 18.
InterCap CEO Steve Goldin also launched an advertisement campaign in the days following the meeting, sent township-wide mailings to residents, and conducted telephone surveys asking residents about their feelings about how individual council members have handled the process (see sidebar). The campaign soured feelings heading into the August 1 meeting, but council members voted to introduce the ordinances without any major structural changes, despite a few technical ones.
Councilman George Borek, who voted in favor of introducing the ordinances, was one of those who were soured by Goldin’s campaign. "One of the most frustrated parts of this was the bombardment everyone received from InterCap Holdings," he said. "Even though my name wasn’t on the flyer, I think it’s disrespectful and disingenuous against the people elected to make a decision."
Although he voted in favor of the ordinances, Borek said "we should have had a little more latitude from the judge, instead of being under such tremendous pressure."
The settlement agreement — approved on July 11 — required that the ordinances be approved by July 18. When the ordinances were not introduced at that time, InterCap became adamant that it would not re-enter negotiations on the settlement or the ordinances and sent the letter to the judge.
"We had a deadline from the judge," he added, saying that the township’s attorneys had a conference call with the judge on July 29, after the closed session. "The judge said she was going to wait to see what happens [on August 1] in order to make a determination about whether the lawsuit was to go forward."
Councilwoman Diane Ciccone, who cast the deciding vote on the settlement agreement in a 3-2 vote on July 11, had only agreed to vote for the deal after negotiating with InterCap during the meeting and getting the developer to include for-sale affordable housing units in the plan. The final settlement agreement included 800 total units with 98 affordable units — 80 of which are rental and 18 of which are for sale.
But several days later, Ciccone said that she didn’t support the ordinances because she felt "substantial changes" needed to be made before she could vote to introduce the ordinances. She specifically pointed to prior ordinances that were adopted in March, which did not include a list of recommendations the Planning Board made for changes.
Subsequently, the ordinances were pulled from the agenda on July 15, and during the meeting on July 18, other council members also said they wanted to submit their own suggestions for revisions to the ordinances before they could support them. Council members submitted their concerns and revisions to Township Attorney Michael Herbert prior to the closed session meeting the council held on July 28.
Meanwhile, InterCap filed its letter and requested a "case management conference" to proceed with a review of the township’s redevelopment study. That would have set the stage for the developer to perpetuate the litigation by challenging the township’s designation of the 350-acre Princeton Junction train station area as "in need of redevelopment."
"I voted for is because I know for certain this is what we have," said Borek. "There is still some question about the feasibility of it and whether it is tax positive for the community. We had some discussion in executive session as part of the negotiations.
When asked how the council was able to garner enough votes to introduce the ordinance, Council President Kamal Khanna said the issue all along was with the time constraint.
"After July 11, the next morning, we were told we were supposed to introduce the ordinances on July 18," said Khanna. "All of the council members had some questions and concerns, and there was no way that we could address them by July 18. There was too short of a time because of holidays and vacation time. It took us about two weeks to get council’s recommendations to the lawyers."
"We needed more time to address issues raised by the council members," Khanna added. "I was not ready to put it on the agenda on July 18. This was a legitimate request. We needed a couple of weeks to get our act together."
Despite a few technical changes to the language, as recommended by council members, the ordinances remained essentially the same as originally proposed. When asked whether the Planning Board’s prior recommendations were addressed, Khanna said some were included, but most will be addressed when InterCap enters the site plan review phase of the project.
Specifically with regard to Ciccone’s concerns, Khanna said the major Planning Board recommendations were already included in the settlement. "We had over 10 percent of affordable housing," as opposed to the 5 percent originally proposed, he said. "The Planning Board wanted 10 percent, and we included 12.2 percent."
"What was left were all these little recommendations," he added. "Some of them got into the new ordinances; some will be addressed at the site plan level."
Khanna also addressed the concerns raised by some of his council colleagues and many residents — the fiscal impact analysis. He said he initiated a fiscal impact study after listening to residents at a prior meeting. He said the "preliminary" study is being compiled by township staff — and not that of InterCap — and will be fine tuned as the township moves forward.
After the meeting, Mayor Shing-Fu Hsueh also discussed the "preliminary" fiscal impact analysis, which will not be released to the public at this time. Calling it a "project in progress," Hsueh said that staff in the tax assessor’s office ran some numbers to come up with a rough estimate to present to the Township Council at its closed door session on July 28.
"It’s tax positive, but how much revenue we’re going to get from there is subject to a lot of factors," he said. "We have some rough calculations, but the assumptions are so rough, so preliminary, we cannot really say this is a good number. All we can say is it’s based on what we know today, and we shared that number within the closed-door session with council members."
Hsueh said that professionals will run the fiscal impact study at a later time. But until then, the numbers are not going to be released. "People are going to divert their attention to some of the things that are totally irrelevant to the case we are dealing with," said Hsueh. "At the appropriate time, when we have more reasonable professional assumptions, we will share that. The draft copy cannot be open [to the public] because we won’t make that open until we feel we have that final, reliable information available."
He mentioned the rough estimates that were done to let the public know that the council’s decision was not made without any basis.
"The reality here is that the judge’s decision is not going to rely on the fiscal impact analysis," added Hsueh. "Toll Brothers never provided any fiscal impact analysis."
Hsueh said he wanted the township to avoid a similar situation to the Toll Brothers case, when the judge awarded the developer the right to build more units than was proposed to West Windsor, which fought the development. The Estates at Princeton Junction resulted from the court case, and the township ended up with more housing units.
"The judge also removed the planning authority from West Windsor [in that case], and that’s much worse," said Hsueh. "It’s not exactly 100 percent what we wanted, but the reality here is if we don’t have three votes, what’s next?"
Council members Linda Geevers and Charles Morgan, however, were not convinced as they voted against introduction of the ordinances.
Geevers takes issue with the Planning Board recommendations, which she says have not been included in the ordinances. "That whole idea went no where," she said. "I certainly still support those Planning Board recommendations."
Geevers was adamant in demanding that InterCap provide a fiscal impact analysis report prior to the council’s vote on the settlement and the ordinances. "It is expected when the site plan review comes in, but I think it’s important to receive it now," she said. "Many residents have been asking for a fiscal impact analysis report for many, many months."
The reduction of residential parking spaces in the plans covered by the settlement was also a problem for Geevers. "I didn’t support going from 1.5 residential parking spaces to 1.4375," she said. "This is a change that should be considered by the Planning Board at site plan review. Now the Planning Board will not have the legal authority to require more parking once the council lowers the requirement. This change ties the hand of the Planning Board."
Geevers said the move will result in 50 fewer parking spaces. At $18,000 per parking space it costs to develop the parking spaces, InterCap stands to save $900,000 on the reduction — ironically, as Geevers points out, the same amount the township administration was originally willing to take out of the township’s affordable housing fund and give to InterCap toward building the affordable units on site. "Once way or another, they got economic benefits from this," said Geevers.
Geevers emphasized that she does "support redevelopment, but I don’t necessarily agree with all the changes that are being proposed."
The settlement agreement was approved in the 11th hour on July 11 — but only after officials from three parties involved in the settlement agreed to replace some of the affordable rental units with for-sale affordable units.
West Windsor had approved a settlement agreement in November, 2010, with InterCap. The plan called for 800 units with 760 market-rate units and only 40 affordable units — all of which would have been for-sale units.
Then the Fair Share Housing Center, which serves as an affordable housing advocate throughout the state, challenged the settlement. All three parties had been negotiating new terms for the agreement up until a court hearing on July 8.
The Fair Share Housing Center wanted more than just a 5 percent affordable component, and it wanted the opportunity to provide more rental possibilities during a time when mortgages are hard to obtain, even for market-rate buyers.
First, officials negotiated a plan that would have contained 820 units, with 100 being affordable rentals. Then on July 8 the plan was whittled back down to include 800 units, with 12.2 percent, or 98 units, being affordable rentals. Of the 98 affordable units, 50 percent would be moderate, 40 percent would be low, and 10 percent would be very low.
To make it more financially feasible for InterCap to build the additional affordable units, West Windsor originally agreed to use $900,000 of its $1.8 million affordable housing fund — a fund that accumulated from developer contributions — to pay for structured parking for the affordable housing units.
The revised plan was approved by Superior Court Judge Linda Feinberg on July 8 — subject to Township Council approval. InterCap agreed to the settlement under the condition that it be approved by the West Windsor Township Council no later than July 11. Because the InterCap litigation was filed in May, 2009, as a Mount Laurel affordable housing lawsuit, Feinberg had to conduct a fairness hearing to determine if it satisfied Mount Laurel principles and the Fair Housing Act.
However, heading into the July 11 council meeting, the developer agreed to drop the requirement that the township spend $900,000 to build the structured parking, after some council members voiced concerns behind the scenes.
But by 10:45 p.m. on July 11, it was clear that there were not enough votes of approval — unless Ciccone could be assured that at least some of the families living in the affordable units could have the opportunity, at some point, to own a home at an affordable price.
When it became clear that the vote would have been 3-2 to turn down the settlement, the Fair Share Housing Center agreed to breaking down the affordable units to include 80 that are rental and 18 that are for sale, and InterCap agreed to go along with the revision — with the stipulation that the for-sale affordable units come from the portion that are "moderately" priced. In addition, no more than 35 percent of the units in each of the residential buildings will be affordable. The percentages of the moderate, low, and very low-income units will remain the same.
The new settlement also reflects an agreement to extend the affordable housing controls for affordable units from 30 to 35 years. Under the terms of the agreement, there will be no separate building for the affordable units. The 98 units will be dispersed throughout the project. All of the other elements of the November, 2010, settlement will go into effect.
Goldin declined to comment for this story.