As a result of state-mandated affordable housing requirements, an influx of housing units has been a major point of discussion during Livingston Town Council’s most recent meetings.
A contentious redevelopment plan of 45 South Livingston Avenue was on the Council agenda under “Ordinance 19-2023” on July 24 for a second reading. The ordinance was not passed that night. It was introduced on June 26, and the project had been discussed previously with the Planning Board, as well.
Since, residents - especially residents who live near the property - have banded together in an attempt to push back against the plan with primary concerns of traffic safety and overcrowded schools. An online MoveOn petition that opened three weeks ago to “stop unnecessary development in Livingston” has now reached nearly 2,000 signatures.
Despite the uproar, for this andmanyotherproposedhousing developments in town, there is still a good deal of confusion as to what is happening and why, as well as much of the terminology associated with it.
To help clear this up, the West Essex Tribune spoke with New Jersey Future’s land use policy analyst Tim Evans; Fair Share Housing Center’s Josh Bauers, who has been overseeing Livingston’s case; and township manager Barry Lewis to answer questions and explain definitions pertinent to fair share housing.
How is affordable housing defined in New Jersey?
Affordable housing is housing with a sales or rent price for a very low, low, or low-to-moderate income household.
The fair market rent for a two-bedroom apartment in New Jersey is now $1,742, according to the National Low Income Housing Coalition’s June 2023 “Out of Reach” report. This requires a household income of nearly $70,000, or a $33.50 hourly wage (approximately working 95 hours per week) in order for no more than 30 percent of their pay to go to utilities and rent. The minimum wage in New Jersey is $ 14.13.
What is the Mount Laurel Doctrine?
New Jersey has an expansive history of redlining or exclusionary zoning. Public and private tenant screening policies disproportionately impact low-income communities and people of color, making it difficult to secure housing, a report by Fair Share Housing Center says. The Mount Laurel Doctrine attempts to integrate New Jersey communities, and Fair Share Housing Center ensures inclusionary zoning enforcement.
What is the Fair Share Housing Center?
Fair Share Housing Center (FSHC), founded in 1975, is a 501(c)(3) nonprofit organization advocating for affordable housing and housing justice in New Jersey. In response to a motion FSHC filed with the New Jersey Supreme Court to enforce litigant’s rights, the Supreme Court in 2015 found that the Council on Affordable Housing’s (COAH) administrative process had become non-functioning and, as a result, returned primary jurisdiction over affordable housing matters to the trial courts. Under the 2015 Supreme Court decision, FSHC has a right to comment on every affordable housing plan in every town in the state.
Since 2015, as the legal entity designated to represent the interests of the public by the New Jersey Supreme Court, Fair Share Housing Center has entered into affordable housing settlement agreements with more than 340 municipalities throughout the state.
What is COAH?
When the New Jersey Legislature passed the Fair Housing Act (FHA) in 1985 to implement the Mount Laurel Doctrine. The FHA established the Council on Affordable Housing (COAH) and an administrative process for towns to submit affordable housing plans to COAH.
In 2015, the Supreme Court ruled that COAH is non-functioning, after C OAH failed to establish legally acceptable rules for towns to follow. C OAH effectively lost its administrative powers, and oversight and constitutional compliance of fair share housing has since been under the jurisdiction of trial courts.
What process was put in place of COAH in 2015?
COAH had historically protected municipalities from builder’s remedy lawsuits. In order to maintain similar protections, municipalities were required to file a declaratory judgment (DJ) action with the trial courts after COAH had dissolved. The DJ action sought to declare the town’s Housing Elements and Fair Share Plan are constitutionally compliant. Builders, developers, land owners and other interested parties (also known as “intervenors”) were allowed to intervene in the proceedings. The filing of the DJ action began a negotiation process between the municipality, Fair Share Housing Center, and intervenors. The negotiation process was overseen by a court-appointed Special Master (a mediator). The Fair Share Housing Center had to approve any proposed settlement agreement, which was initially reached with Livingston in 2020. A recently amended agreement has yet to be approved. If a town had not filed DJ action, it would risk losing protection against a builder’s remedy lawsuit.
What is a builder’s remedy lawsuit and how does it function?
A Builder’s Remedy lawsuit is a process created by the Mount Laurel II decision, which allows a developer to bring litigation against a municipality. The goal of this lawsuit is to change zoning on a particular site if the developer demonstrates that the municipality is not in compliance with its Fair Share obligation or is engaging in exclusionary zoning practices. When the developer shows that the town is not fulfilling its obligation, the court may then permit the developer to construct higher density housing on the property, even if it is inconsistent with surrounding zoning and land uses. Still, the developer must set aside the required percentage of low- and moderate-income housing as part of the development.
What are housing “rounds?”
COAH, then-responsible for the oversight and compliance of the Mount Laurel Doctrine, created fair share housing “rounds.”
These rounds divide the rules and procedures that a municipality must follow in order to meet their obligation of fair share housing.
Round One covered the time period from 1987 to 1993. Round Two covered the period from 1993 through 1999. These two rounds are now referred to as the “Prior Rounds.” COAH used a different methodology, “growth share,” in 2004, but after four years of this approach being challenged, the Appellate Division in 2010 invalidated the method. The Appellate Division also had indicated that COAH should adopt regulations pursuant to the Fair Share methodology utilized in Rounds One and Two. This was affirmed by the Supreme Court in 2013.
New Jersey is currently in its third round, which is set to expire in 2025, at which point another round of obligations will begin.
What is high density housing?
Housing is “high density” when it is able to accommodate a higher population of people than typical, especially within that property’s zone. This means more people live in a smaller area of space, and is common in high-rise apartments or commercial buildings. Special Masters of the court – mediators – may recommend densities in excess of the minimum state requirement of 12 rental units per acre, eight market units per acre.
What is a PILOT?
Many municipalities are using New Jersey’s Tax Abatement Programs in an attempt to help community growth in those areas. Payments In Lieu of Taxes (PILOT) are long-term tax exemptions under N.J S.A. 40A:20-1. Under the PILOT programs, municipalities authorize developers exemptions from standard property taxes for a determined period of time to encourage them to improve a property, or locate a project in a “distressed or blighted” area. Property owners then make an annual PILOT to the municipality, which may be less than traditional taxes. PILOTs are generally based on a percentage of the cost of the project.
What are Livingston’s unmet needs?
According to Josh Bauers, an attorney at Fair Share Housing Center who is overseeing Livingston’s case, the township received a vacant land adjustment, which is a process where a municipality can inventory its vacant land to demonstrate that it lacked sufficient land to provide the required affordable housing. Realistic potential development was adjusted down to 151 units affecting 19 total development projects, not all of which will require building new property. See the chart on this page for a list of Livingston’s current plan for fulfilling its affordable housing needs, derived from the Fair Share Housing settlement agreement.
How much control does the township have over a site?
“As long as towns actually do what they’re supposed to do in zoning for their fair share, they could do it really in any manner that they choose,” Josh Bauers, the senior staff attorney at Fair Share Housing Center, said. “The town still maintains local control, they still can pick sites, as long as they’re actually realistic and within reason. Towns really do maintain the utmost control in this process.”
An “unrealistic” site would be an area that’s encumbered by wetlands or other environmental constraints that would render it unbuildable.
The township negotiates a project’s size and density with a developer. These negotiations are predicated on Fair Share Housing Center’s expectations. For example, if Livingston proposed a 20-acre site with ten units proposed, Fair Share would, according to township manager Barry Lewis, “undoubtedly say that’s ridiculous. You can put 200 units on 20 acres, or 500 units. Part of their assessment and their willingness to agree is seeing that the density and the number of units is a real reasonable number.”
Bauers explained that towns have control over how they intend on fulfilling their fair share of affordable housing obligations. It may look like, for example: supportive housing for individuals with special needs and disabilities; accessory apartments; assisted living facilities; extending expiring controls on existing affordable housing; buy existing substandard housing, “fix it up” and then sell it as affordable housing.
“There’s a number of different things that towns can do to address these obligations, not all of which actually demand a lot of development,” Bauers said.
Has Livingston been involved in a builder’s remedy lawsuit before? What happened?
Livingston did lose in two litigations: the Pulte project behind Kushner Academy and what was then-called the Livingston Corporate Center, the site right behind the Ambulatory Care Center. The builder had advised the court that the township was not building enough affordable housing, and the court then ordered the town to comply with the builder’s proposal.
“Us approving these projects doesn’t mean it’s something that we were actively looking for, or even necessarily want,” Lewis said. “We’re just trying to make the best deal possible, and protect ourselves from unlimited builder’s remedy lawsuits, and that the alternative to reaching a settlement could be far worse.”
How does 45 South Livingston Avenue play into all of this?
The 45 South Livingston Avenue property is not explicitly listed in the amended or original contractual agreement between Livingston Township and the Fair Share Housing Center.
The contract cites that “the Township will adopt an ordinance requiring a mandatory affordable housing set-aside for all new multifamily residential developments of five units or more” with 15 percent set aside for rental units and 20 percent set aside for market units.
“So to that degree, that falls under that provision, like any other new project that wasn’t listed two years ago, that comes up now,” Lewis said.
He explained that “there was a belief that the site needed redevelopment,” and that the developer was willing to “not get adversarial knowing that they would have to provide affordable housing and that it would fall under that provision requiring it. But without making it adversarial, the belief was that we could hopefully negotiate a project that was suitable for everybody.”
Since 45 South Livingston Avenue isn’t listed in the contract, are there grounds for a builder’s remedy lawsuit?
The site is not listed in the third round settlement agreement, so the township is “not obligated to do it,” Lewis said. “But if we do do it, they have to come up with affordable housing in accordance with the settlement agreement.”
Lewis explained that the developer has “made it abundantly clear” that if the site does not get built, they will intervene during the next round, which begins in 2025. Lewis said that the developer will seek more units at the point of intervening. “So it’s kind of not going away,” he said. “Let’s put it that way.”
The ordinance was pulled during a July Town Council meeting. Will there be an opportunity to talk about this with the town again?
An opportunity to talk more about the development will come at some point in September during a “public informational meeting.” The developer will be present, and residents will be able to voice concerns stressed to Town Council members.
“We heard some of the concerns of the neighbors about the traffic and height and landscaping and buffering,” Lewis said. “And we’re going to continue to meet with the developer to see if they can do anything to tweak to address some of those concerns.”
How else can local residents be involved in this process?
Those interested in having their voices heard may participate in Town Council meetings or show at the next Superior Court hearing for Livingston’s amended agreement with Fair Share Housing. The August 17 proceeding was adjourned to an undetermined date.
