Affordable Housing

NOTICE OF FAIRNESS HEARING

FOR THE TOWNSHIP OF WAYNE, COUNTY OF PASSAIC (“TOWNSHIP”), REGARDING A SETTLEMENT AGREEMENT RELATED TO THE TOWNSHIP’S OBLIGATION TO PROVIDE MT. LAUREL/AFFORDABLE HOUSING TO LOW AND MODERATE HOUSEHOLDS FOR THE AFFORDABLE HOUSING PERIOD 1987-2025

Superior Court of New Jersey
Docket No. PAS-L-2396-15
 
PLEASE TAKE NOTICE that, in accordance with the Court’s Order of December 15, 2021, on February, 22, 2022, beginning at 2:00 PM, or as soon thereafter as the matter may be heard, there will be a Fairness Hearing (“Hearing”) before the Honorable Thomas F. Brogan, P.J.S.C. at the Passaic County Courthouse, 77 Hamilton Street, 3rd Floor, Paterson, New Jersey 07505 (“Court”).  The purpose of the Hearing is for the Court to consider whether the Settlement Agreement between the Township of Wayne (“Township”) and the Wayne Township Planning Board (“Planning Board”) and the Fair Share Housing Center (‘FSHC’) dated December 15, 2021 (last signature date of December 29, 2021) (“Settlement Agreement”) will fairly facilitate the production of affordable housing in order to contribute toward addressing the Township’s obligation to provide a realistic opportunity to satisfy its Prior Round and Third Round “fair share” of the regional need for housing affordable to low income and moderate income households pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301, et seq., the substantive applicable regulations of the New Jersey Council on Affordable Housing (“COAH”), the New Jersey Supreme Court’s March 10, 2015 decision in the matter of In re N.J.A.C. 5:96 & N.J.A.C. 5:97, 221 N.J. 1 (2015) and other applicable laws. 
PLEASE TAKE NOTICE that due to the ongoing COVID-19 emergency, currently most Court business is being conducted ‘virtually’, rather than ‘in-person’; thus, the Fairness Hearing may not, and likely will not, be held in person at the Passaic County Courthouse. Information about courtroom closings is available at:
https://njcourts.gov/  and https://njcourts.gov/courts/closings.html.

In accordance with said Order of the Court, and unless changed by directive of the Court, the Fairness Hearing will be conducted ‘virtually’ using a web platform called “Zoom” or by participating by telephone.  Any person who wishes to participate in the Fairness Hearing should consult https://njcourts.gov/ for updated information.  In addition, some, but not all, court matters may be available for viewing at https://www.njcourts.gov/public/channels.html.  For the convenience of the public and because a virtual link and/or a phone number to participate in the Fairness Hearing is not currently available from the Court, such virtual (Zoom) link and/or phone number will be posted on the Township’s website (https://www.waynetownship.com/affordable-housing-mt-laurel.html) as soon they are made available by the Court, which usually occurs immediately prior to the Fairness Hearing.  In addition, such a person may also contact the Township Clerk at (973) 694-1800 and request a copy of the virtual (Zoom) link and/or phone number. 
The Settlement Agreement is between the Plaintiffs, Township and Planning Board and state-wide intervenor Fair Share Housing Center (‘FSHC’).  The Settlement Agreement proposed is a component of the aforesaid Court matter and the Township’s intended Third Round Affordable Housing Plan to which is intended to fully address the Township’s affordable housing obligations for the Third Round period (1999-2025), including the Prior Rounds (1987-1999). The Settlement Agreement resolves all claims and matters as between the Township and Planning Board and FSHC.
The Settlement Agreement will be available for public inspection and/or photocopying (at requestor’s expense) during regular business hours between the hours of 8:30 A.M. and 4:00 P.M. on Mondays through Fridays, excepting legal holidays and emergency closures, at the Township Clerk’s office located at Township Municipal Complex, 475 Valley Road, Wayne, New Jersey 07470; the ability to appear and perform such inspection shall be subject to rules pertaining to Covid-19 safety.
On the date of the Hearing, the Court will conduct a Fairness Hearing to determine whether the Settlement Agreements are fair to low and moderate income households and will create a realistic opportunity toward satisfaction of the Township’s affordable housing obligations pursuant to the Mount Laurel decisions and their progeny, the Fair Housing Act (N.J.S.A. 52:27D-301, et seq.), and the applicable procedural and substantive regulations of COAH and the Supreme Court’s March 10, 2015 decision in the matter of  In re N.J.A.C. 5:96 & N.J.A.C. 5:97, 221 N.J. 1 (2015), to satisfy the Township’s affordable housing responsibilities for the period 1987-2025. 
The Township will seek a Judgment of Compliance and Repose as to said agreements formally approving those Settlement Agreements, subject to appropriate conditions, if any, that may be imposed by the Court.  Any interested third party that seeks to appear and be heard at the said Hearing on the Settlement Agreements shall have the opportunity to present any position on the Settlement Agreements.  Objections or comments by any interested person shall be filed, in writing along with all supporting documents, with the Court on or before February 9, 2022, at the above address, with duplicate copies simultaneously served, by mail and by email if shown below, to the attention of the following:


Christine A. Nazzaro-Cofone, AICP/PP

Court Special Master

Cofone Consulting Group, LLC

125 Half Mile Road - Suite 200

Red Bank, NJ 07701

www.cofoneconsulting.com

 

 

 

 

***************************************

Henry L Kent-Smith,. Esq. &

Michael W. Sabo Esq.

Fox Rothschild LLP

(o/b/o K. Hovnanian North Jersey Acquisitions, LLC)

Princeton Pike Corporate Center

997 Lenox Drive, Building 3, Lawrenceville, NJ 08648-2311

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.foxrothschild.com

 

Hoff, Richard J., Esq.

(o/b/o Wayne Property Holdings & Waynebridge Plaza, LLC)

Bisgaier Hoff

25 Chestnut Street, Suite 3

Haddonfield, New Jersey  08033

This email address is being protected from spambots. You need JavaScript enabled to view it.

www.bisgaierhoff.com

 

Jeffrey Kantowitz, Esq.

Law Offices of Abe Rappaport, Esq.

195 Route 46 West

Suite 6

Totowa, NJ 07512

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Mark J. Semeraro, Esq.

(o/b/o Galreh & Wayne PSC, LLC)

Kaufman, Semeraro & Leibman LLP

90 East Halsey Road, Suite 385

Parsippany, New Jersey 07054

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

John P. Inglesino, Esq., and

Derek W. Orth, Esq.,

(o/b/o AvalonBay Communities, Inc. )

Inglesino Webster Wyciskala Taylor, LLC

600 Parsippany Road, Suite 204

Parsippany, New Jersey 07054

This email address is being protected from spambots. You need JavaScript enabled to view it.

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

John Fiorello, Esq.,

Special Mt. Laurel Counsel, Twp of Wayne

Fiorello Puccio & Fiorello, LLC

1044 Route 23 North, Suite 318

Wayne, NJ 07470

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

Matthew J. Cavaliere, Esq.,

Atty to Twp Planning Board

Cavaliere & Cavaliere, PA

1700 Route 23 North, Suite 201

Wayne, NJ 07470

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

Brian M Chewcaskie, Esq.,

Special Mt. Laurel Counsel, Twp of Wayne

Cleary Giacobbe Alfieri Jacobs LLC

169 Ramapo Valley Road, UL 105

Oakland, NJ 07436

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

 

Adam M. Gordon, Esq.

Bassam F. Gergi, Esq.

Rachel Lokken, Esq.

Fair Share Housing Center

510 Park Boulevard

Cherry Hill, New Jersey 08002-3318

This email address is being protected from spambots. You need JavaScript enabled to view it.

This email address is being protected from spambots. You need JavaScript enabled to view it.

 

Margiotta, Paul V. RMC

Municipal Clerk

Township of Wayne

475 Valley Road

Wayne, New Jersey  07470-3582

 
This Notice is provided pursuant to directive of the Court and is intended to inform interested parties of the proposed Settlement Agreements and inform such parties that they are able to comment on the Settlement Agreements before the Court reviews and evaluates whether to approve the Settlement Agreements. This Notice does not indicate any view by the Court as to the fairness or the adequacy of the Settlement Agreements.
__________________________________

Paul V. Margiotta, RMC, CMC, MMC

Clerk of the Township of Wayne


Background Information
 
New Jersey’s affordable housing policy dates back to the mid-1970s with a series of New Jersey court decisions that began in 1975 and which established what has become known as the Mt. Laurel Doctrine. In Southern Burlington County NAACP v. Township of Mt. Laurel (1975), the New Jersey Supreme Court concluded “that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate-income housing and in its regulations must affirmatively afford that opportunity.

In 1985, and in response to the Supreme Court’s Mt. Laurel decision, the State of New Jersey passed the Fair Housing Act (“FHA”) in order to implement the Court’s decisions through an administrative process. The Fair Housing Act created the Council on Affordable Housing (COAH) to oversee this process. Under the Mt. Laurel Doctrine and the Fair Housing Act, housing developers may bring suit against a municipality, through what has become known as a Builder’s Remedy lawsuit, to force a municipality to allow for the construction of a housing development. Municipalities are able to avoid these potential lawsuits by proactively adopting a constitutionally compliant Mt. Laurel a/k/a “Affordability Plan” in the form of a component of the municipality’s Master Plan, called the “Housing Element and Fair Share Plan”. The FHA provided an administrative mechanism for the municipality’s proposed Plan to be deemed constitutionally compliant by way of submission to and approval by COAH. The COAH approval is known as “substantive certification.” Once substantive certification is granted by COAH, the municipality is granted a period of immunity from Builder’s Remedy lawsuits.

Before COAH could determine which municipalities had met their constitutional obligation and thus eligible for immunity, COAH needed to understand what housing obligation the State as a whole and municipalities individually would be facing over a certain defined period of time, called “Rounds” or "Housing Rounds”. The initial, or “First Round/Round 1” was set at a 6 year period. Complex calculations projecting population growth, population distribution, and income distribution were developed to determine the affordable housing obligation for each municipality. These calculations served as the basis for COAH’s Round 1 (1987-1993) and Round 2 (1993-1999) rules. Third Round rules were expected to begin in 1999, however, they were subject to numerous delays from COAH. Beginning in 2004, COAH adopted a new methodology to determine a municipality’s affordable housing obligation: Growth Share. Instead of the complex calculations used in Round 1 and Round 2, Growth Share would establish an affordable housing obligation based upon the actual growth of a municipality in population and employment. While simpler and cleaner as a methodology, Growth Share was flawed: a municipality could avoid an affordable housing obligation by preventing development. The New Jersey Appellate Division rejected the use of the Growth Share methodology in 2007 and 2010, and COAH was obligated to adopt new affordable housing rules.

After further delays in adopting Round Three rules, the New Jersey Supreme Court in the case of In re the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing (2015), concluded that COAH had failed its mission and that “Constitutional compliance presently cannot be evaluated under COAH’s jurisdiction; the FHA’s exhaustion-of-administrative-remedies requirement has been rendered futile,” and “Therefore… we hold that the courts may resume their role as the forum of first instance for evaluating municipal compliance with Mount Laurel obligations…” Thus began the current process by which compliance with Mt. Laurel obligations and certification thereof occurred through litigation.

The Township is currently working to settle its Third Round Mt. Laurel obligation and to that end has filed an application with the Court in a matter captioned In the Matter of the Application of the Township of Wayne, Docket No. PAS-L-2396-15.

In regards to the Township’s historic and ongoing efforts to meet its constitutional obligation, please see the following announcements, presentations, and documents:

Ongoing Round Three Effort

Prior Events and Information
The Mt. Laurel Committee hosted a public information session on February 24, 2021

The Mt. Laurel Committee hosted a public information session on September 9, 2020 The Mt. Laurel Committee hosted a public information session on February 26, 2020
Settlements
Fair Share Housing Center
Avalon Bay
Wayne PSC LLC/Preakness Shopping Center
Waynebridge Plaza, LLC
K. Hovnanian North Jersey Acquisitions LLC (Rockledge Farm)
Wayne Property Holdings, LLC (GAF Site)

Housing's Impact on School Aged Children

The Township has received questions from residents voicing their concern regarding the potential of the affordable housing projects creating an burden on the Wayne Public Schools. Under the State’s Mt. Laurel Doctrine, municipalities and school systems are required to accommodate changes in the school aged population resulting from new housing, and any potential impacts on the school systems cannot serve as a basis for relieving municipalities of their constitutional obligation to provide a realistic opportunity to create affordable housing. While the Township cannot use potential impacts on the Wayne Public Schools as a means to object to its constitutional obligation, the Township and the Board of Education can begin to anticipate and plan for any impacts.

There are two key New Jersey based studies analyzing the number of children that reside in different types of residential units (ie. single family, townhouse, apartment). Starting in the 1970s, the Rutgers Edward J. Bloustein School of Planning And Public Policy began studying this issue. The most recent Bloustein study was conducted by Alexandru Voicu and David Listokin, published in November 2018, and is entitled “Who Lives in New Jersey Housing?” This study uses data from the U.S. Census Bureau’s American Community Survey to analyze the number of children generated by a variety of characteristics of housing, including housing type, number of bedrooms, age of housing, and income of resident.

The Rutgers Center for Real Estate (RCRE), conducted a separate study which was released in July 2018. This study was conducted by Rutgers professors Morris A. Davis, Ph.D., and David Frame, Ph.D., and real estate developers Ronald S. Ladell of Avalon Bay and Debra Tantleff of Tatum Realty. Whereas the Bloustein study used data from the American Community Survey, the RCRE study used survey data gathered from developers and property managers. This study also looked at the number of children generated by a variety of characteristics of housing, including housing type, number of bedrooms, age of housing, and income of resident.

Finally, the Wayne Township Board of Education is required to prepare a Long Range Facility Plan to ensure the Wayne Public Schools have sufficient facilities for the Township’s school aged population. Drafting of a Long Range Facility Plan requires a demographic analysis and projections of population growth to be conducted by a qualified demographer. The most recent demographic analysis conducted on behalf of the Wayne Township Board of Education was prepared by Whitehall Associates, Inc. and is dated June 20, 2018. Table 4-1, 4-2, and 4-3 of this analysis looks at the potential impact of residential development within the Township on enrollments in the Wayne Public Schools based on different scenarios of growth.

These three documents are provided below to allow the public to have a better understanding of the potential impact of additional housing development on the Wayne Public Schools.

Town Hall

475 Valley Road
Wayne, NJ 07470
Weekdays 8:30am-4:30pm
Tuesdays open until 7:00 pm
Sat & Sun: Closed
Closed on State Holidays

Wayne DPW Complex

201 Dey Road
Wayne, NJ 07470
Weekdays 7:00am-3:30pm
Sat & Sun: Closed
Closed on State Holidays