Expert: Better to settle with the developer now

GLEN RIDGE, NJ — The Glen Ridge Council heard from a court-appointed special master Monday evening, Dec. 12, who explained the affordable housing requirements being forced upon the borough.

Special Master Elizabeth McKenzie told the council and 30 audience members, an exceptionally large showing for a Glen Ridge Council meeting, that the municipality is far better off settling with the developer of a proposed four-story, 125-unit residential project on Baldwin Street then not settling with them and going to trial. The developer of the proposed site, located at 273, 275, 277, 283 and 289 Baldwin St., directly across from Washington Field, is Glen Ridge Developers LLC.

McKenzie said the project is an outgrowth of the 1983 Mt. Laurel affordable housing decision which obligated municipalities to provide housing for low-income families. The Council on Affordable Housing was to oversee the process. McKenzie said that providing affordable housing was resisted, in part, by allowing one community to pay another community for assuming its obligation, but this practice has been declared illegal. COAH was also partly dismantled by Gov. Chris Christie, she said.

A NJ Supreme Court decision then gave developers the opportunity to pursue a “builder’s remedy” provided the developer included affordable housing units in their plan. The proposed Baldwin Street site would have 19 affordable housing units.

“A developer came in, put parcels together, and sued for a builder’s remedy,” McKenzie said. “That means something will go on the site. You have no alternative.”

She said the number of affordable housing units that the borough will eventually have to provide to developers will be a higher number than the borough can handle. Other than Baldwin Street, she said the only other place in Glen Ridge with accessible land is the Glen Ridge Golf Course.

“How bad is it going to be?” she said. “You have an obligation you will not be able to meet.”

She advised everyone that it is better to come to some agreement with the developer because if the borough went to trial, it would have no say over what is going to be built.

“Trust in your council in trying to reach a settlement,” she advised the audience.
In negotiations with the developer, McKenzie said while the 19 affordable housing units may have three bedrooms, perhaps the borough could convince the developer to make the 106 market-priced housing one- or two-bedroom apartments. She said all the units, according to the developer, will be rentals.
Councilman Dan Murphy asked if there would be a moratorium on development. McKenzie said there would be.

“Once you’ve gone to trial or had a settlement, you would get a judgement of compliance and repose,” he said. “You’ve done everything you had to and no one else can sue you for a builder’s remedy.”

She said the borough would not have to worry about having to provide more affordable housing for eight years. She said during that time, Glen Ridge could prepare to provide more.

There was some question if a building being located in an historical district could save it from being razed. Murphy, who is active with the Glen Ridge Historical Commission, said it was his understanding that a builder’s remedy superseded any protection from municipal historic district ordinances.
Borough Attorney John Malyska told everyone that the borough must abide by the state Constitution.

“It’s a greater authority than a local issue,” he said.
He said that the borough was hoping its fate would change regarding an affordable housing commitment.

“We were of the opinion that as long as we delayed, circumstances could change in our favor,” he said. “There will be a number allocated to us for our fair share,” he said. “We always had a fair share number but no land.

“In March 2015, the courts said they were throwing this on to the builders,” he said. “The developer is doing what is right under the law.”

Malyska said the proposed site is 2.3 acres and has five lots.
“Zoning is no remedy,” he said. “After we do this, there is still a big number out there. But we’ll be in repose. We never thought it would come to this.”
Malyska said the Mt. Laurel affordable-housing decision, at the time, was only of passing interest to Glen Ridge.

“But this is different,” he said.
McKenzie said that Glen Ridge zoning laws would only be viable if they provided affordable housing.

“The best-case scenario is to develop a site that you can live with,” she said.
She said things could get worse if the developer decided to amend his proposal. But once there is a settlement, the plans would go to the Glen Ridge Planning Board.

“With a builder’s remedy, the developer’s plan is basically accepted by the judge,” she said.

The Essex County Superior Court judge who is presiding over settlements and trials brought by a builder’s remedy is Robert Gardner, McKenzie said.
“Zoning cannot restrict what a judge determines,” she said, “like bedroom sizes. It will be more units than you want but it may look like something that you can live with.”

A resident asked if the proposed development could be restricted to only senior citizens. But McKenzie said no. Age restrictions can only apply to buildings exclusively used for that purpose while affordable housing must include families.
There were several comments about new families having children overcrowding the schools. McKenzie said it was the position of the courts that towns had to educate the children living there.

“In market units, there’s one kid for every 10 to 11 units,” she said. “People with kids want backyards when the kids become school age.”

She said during the eight years of repose, the time that Glen Ridge can figure out how to provide more affordable housing, “there may be an opportunity to provide space for affordable housing that a new COAH agency may agree with. Courts knew that developers wanted to make money so they attached the requirement that a certain number of units had to be affordable housing.”

Malyska said the judge will begin to pick municipalities to bring to trial in April 2017. McKenzie said, for a developer, time is money and it is better to settle than go to trial.

“If you get something you don’t like, you can appeal,” she said. “Even if you lose, that can take years.”