The state’s school funding formula and affordable housing are two issues where the New Jersey courts and our elected representatives in Trenton have failed the residents of New Jersey in general and the residents of West Windsor in particular.

Because West Windsor is considered a wealthy “J” school district, we get the short end of the stick on every issue (all school districts in New Jersey are divided into groups: “A” being the poorest to “J” being the wealthiest). The matter has gained added importance due to the pending affordable housing case in Mercer County Superior Court.

Editor’s note: West Windsor is one of several towns in Mercer County that is the subject of a lawsuit by the Cherry Hill-based Fair Share Housing Center claiming that the township has not provided for its fair share of state-mandated affordable housing. Judge Mary Jacobson is presiding over the trial, and she will rule on the number of additional units the township needs to provide.

Before the financial crisis in the 2009-’10 school year, the West Windsor-Plainsboro School District received $11.7 million in state aid. This in spite of the fact that the funding formula devised under Governor John Corzine’s administration indicated that fair aid for the WW-P School District was $21 million. For the upcoming school year 2017-’18, WW-P is getting only $8 million in state aid. The taxpayers of our two towns are forced to pick up the difference.

As an elected councilman in West Windsor, I have received some subtle and not-so-subtle advice on what West Windsor should do in the affordable housing case. The legislature, developers, lawyers and courts would like to resolve this case quietly with minimum public scrutiny. It will be unfortunate if that happens, because some very important issues will never get a fair public hearing and debate.

Here is the advice I have received and my reaction to it.

West Windsor must negotiate with the Fair Share Housing Center based on their number of 2,200-plus housing units as West Windsor’s affordable housing obligation.

Even after accounting for our current 1,000-plus credit for units planned for, it still leaves West Windsor over 1,200 new affordable units short of the FSHC number. These units would need to be built in West Windsor between now and 2025.

Using the usual ratio of 4 to 1 for market rate units to subsidize the construction of affordable units, it means West Windsor will have to accommodate over 5,000 housing units within the next eight years. Does any reasonable person believe that West Windsor can absorb 5,000 new houses, apartments and condos in that short a period of time? All of West Windsor has less than 10,000 homes today. How can the courts even entertain a number that is so unrealistic? Why does such an unrealistic number become the starting point for any negotiations?

In their ruling, the court can’t consider the impact of development on schools and current taxpayers.

The developers argue that they can’t afford to build unless they are granted certain goodies by the court. Why can’t West Windsor argue that it can’t afford such a huge tax and infrastructure impact?

Why can’t the school district argue that they can’t reasonably accommodate any more kids and provide them with a “thorough and efficient education,” as the New Jersey Constitution demands? Since we have a joint school district and Plainsboro has already settled their case, the added burden on West Windsor would result in a swing of school taxes from Plainsboro to West Windsor to the tune of at least 7 percent. This is in addition to the higher taxes resulting from new development.

How can the system justify sacrificing existing taxpayers in favor of for-profit developers? Where is New Jersey’s Bernie Sanders when you really need him?

It’s better to settle than fight in court.

This advice has two aspects. First a court case would be very expensive. If all other towns in Mercer County settle, it would cost West Windsor more than $15,000 a day to fight the case. This argument itself illustrates what’s wrong with the legal system in the state and the country. The township spent over $300,000 in legal costs last year on affordable housing litigation.

How can the legislature and courts allow the threat of unreasonable court costs to force a township to settle? Sadly, the taxpayers are paying costs on both sides, since the Fair Share Housing Center to some extent is funded by the taxpayers. This is totally unfair and should be unconstitutional. Since when do you have to help your opponent with legal costs?

Second is a cautionary tale of what happened to West Windsor many years ago in the Toll Brothers litigation and what has happened to South Brunswick in the current round. A judge in Middlesex County imposed an unreasonable burden of affordable housing units on South Brunswick last year when they tried to fight the FSHC in court.

What no one wants to mention is that the judge who granted the judgment after retiring at the end of 2016, appeared in the same court as the developer’s attorney on the first court day of 2017. I am told South Brunswick’s appeal of the judge’s decision will go nowhere. This is as clear a case of conflict of interest as one can find. Do the legislature and courts have no shame in validating the rulings by this judge? Should that biased judge’s ruling set a pattern for all other towns in New Jersey?

Is it any wonder that people are losing all faith in government?

Any settlement with the FSHC must include housing on the Howard Hughes property. An alternate form of this advice is that Howard Hughes is going to sue West Windsor anyway. It’s better to settle with them using the affordable housing case than risk losing in court.

The property was bought by Howard Hughes’ predecessor—a for-profit company— knowing that it was not zoned for housing. Howard Hughes has let the property deteriorate over the last dozen-plus years. They are now potentially trying to take advantage of the affordable housing case to increase the value of the property by forcing West Windsor to rezone it to allow a huge development (Howard Hughes has been granted status as an intervening party in the affordable housing court case).

The simple question is whether it’s the court’s job to bail out a for-profit corporation for their bad investment decision? Can the courts force a township to rezone a property simply because a developer says it can’t develop it the way it wants under the current zoning?

The affordable housing case in front of the courts is truly a test for the legislature and courts on whether the Mt. Laurel decisions give them a blank check to take advantage of towns like West Windsor.

As a councilman, I have thought long and hard about the issue. It’s my job to protect the long-term interests of West Windsor taxpayers. This would dictate that I be prudent in what chances I take on behalf of the township in court. I also believe my obligation is to expose the unreasonableness of the system whenever and whatever way I can.

I believe the current affordable housing issue is just another instance of the unreasonableness of the state government and the courts. They are trying to do the easy thing rather than the right thing. Taking advantage of towns like West Windsor under the argument that they are rich is the easy thing to do. The right thing to do would be to truly provide for people who need affordable housing without soaking taxpayers and favoring for-profit developers.

I am especially troubled because West Windsor Township has been one of the good guys in providing affordable housing even when the state Council on Affordable Housing was dormant. Rather than being rewarded for being good citizens, West Windsor may be taken advantage of simply because of the success of our school district, and it’s easier for developers to profit at the expense of West Windsor taxpayers.

The fact is that not everyone in West Windsor is well off. Sadly, West Windsor is not poor enough to get any sympathy from Trenton, but not rich enough not to really care about paying higher taxes. The fact remains that in his/her own way, an average West Windsor taxpayer feels the same financial pressures faced by everyone in New Jersey. However, that taxpayer in West Windsor is being forced to share an unreasonable burden on every issue simply for the reality of living in West Windsor.

Under the guise of helping the poor, and with an assist from the courts, the developers may be able to ram imprudent developments down West Windsor’s throat. I predict it will be a short-term victory that will lead to long term pain as the township will be unable to absorb all development that the fair share people and the developers want.

The Mercer County Superior Court has a unique opportunity to do the right thing and set an example for the rest of the counties in New Jersey. As an elected representative, I pledge to do what I believe is in the best interest of West Windsor taxpayers in the long run.

This opinion piece is an attempt to start the discussion and an appeal to the legislature and courts not to put so many burdens on one township that the people revolt and say enough is enough.

— Hemant Marathe
Marathe is a member of West Windsor Council.