Affordable Housing

Fairness Hearing
 
Fairness Hearing before Judge Brogan, March 23, 2021 at 10:00 AM. The hearing will be conducted virtually.  Below is the access information:

Topic: PAS-CIVIL-BROGAN-L-2396-15
Time: Mar 23, 2021 10:00 AM Eastern Time (US and Canada)

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This matter having been opened to the Court, by Cavaliere & Cavaliere, P.A., (Matthew J. Cavaliere, Esq. appearing) attorneys for co-petitioner, Wayne Township Planning Board, on notice to and in the presence of: John Fiorello, Esq., of Fiorello, Puccio & Fiorello, P.A. & Brian M. Chewcaskie, Esq., of Cleary Giacobbe Alfieri Jacobs, LLC (both on behalf of the Township of Wayne), Richard J. Hoff, Jr., Esq., of Bisgaier Hoff, LLC (on behalf of Intervenors/Defendants Wayne Property Holdings, LLC and Waynebridge Plaza, L.L.C.), Irina B. Elgart, Esq., of Fox Rothschild, LLP (on behalf of Intervenor/Defendant K. Hovnanian North Jersey Acquisitions, LLC), John P.
Inglesino, Esq., and Derek W. Orth, Esq., of Inglesino Webster Wyciskala Taylor, LLC (on behalf of Intervenor /Defendant AvalonBay Communities, Inc. ("Avalon"), Adam M. Gordon, Esq. and Bassam F. Gergi, Esq., of Fair Share Housing Center (on behalf of Fair Share Housing Center ("FSHC"), and Christine A. Nazzaro-Cofone, P.P., A.I.C.P., of Cofone Consulting Group, LLC (Court-appointed Special Master) along with notice to Mark J. Semeraro, Esq. of Kaufman, Semeraro & Leibman LLP, attorneys for Wayne PSC, LLC; ("Notice Parties") seeking to schedule a Fairness Hearing on settlement agreements reached between the Township of Wayne ("Township") and the Wayne Township Planning Board ("Planning Board") and (a) Wayne PSC, LLC dated November 25, 2020, (b) Waynebridge Plaza, L.L.C. dated December 14, 2020, and (c) AvalonBay Communities, Inc. dated January 8, 2021 ("Proposed Settlement Agreements"); and the Court having considered the request and the proposed Notice and Service List, attached hereto, and for good cause shown;

It is on this 16 day of Feb, 2021, hereby ORDERED and adjudged as follows:

1. A Fairness Hearing shall be held before the Hon. Thomas F. Brogan, PJ.Cv, on March 23, 2021 at 10:00 AM or as soon thereafter as the matter may be heard, at the Passaic County Superior Court, New Courthouse, Chambers 322, 77 Hamilton Street, Paterson, NJ 07 505 for consideration of and seeking approval of the aforesaid Proposed Settlement Agreements with (a) Wayne PSC, LLC dated November 25, 2020, (b) Waynebridge Plaza, L.L.C. dated December 14, 2020, and (c) AvalonBay Communities, Inc. dated January 8, 2021.

2. Within five (5) of Council's receipt of this Order, counsel for the Township and/ or Planning Board shall:
a. Serve a copy of this Order, including the attached notice (Exhibit A) and attached service list (Exhibit B) upon the Notice Parties at their respective addresses,
b. Serve a copy of this Order, including the attached notice (Exhibit A) and attached service list (Exhibit B) upon all "interested parties" as set forth in the said attached service list by Certified Mail/RRR and regular mail,
c. Publish a copy of the attached notice (Exhibit A) in a newspaper having general circulation in Passaic County, Bergen County, Hudson County and Sussex County, New Jersey.
d. Post a copy of this Order and the attached notice (Exhibit A) on the Township's official website.

3. Within two (2) business days of this Order, copies of the Proposed Settlement Agreements shall be filed with the Court and shall be available for inspection during regular business hours at the Office of the Township Clerk, Township of Wayne, 475 Valley Road, Wayne, NJ 07470.

4. Any objections to the Settlement Agreement must be filed with the Court in writing together with copies of any supporting affidavits or documents on or before March 1, 2021 with the Hon. Thomas F. Brogan, P.J.Cv., Passaic County Superior Court, New Courthouse, Chambers 322, 77 Hamilton Street, Paterson, NJ 07505, with duplicate copies forwarded by mail and by email to each of the Notice Parties.

5. On or before March 15, 2021, the Township, the Planning Board, and any of the other Notice Parties may submit a reply to any objections received and provide copies of the same to all other Notice Parties.

6. The Special Master shall submit her report to the Court no later than March 16, 2021.

Signed: Thomas F. Brogan
Hon. Thomas F. Brogan, P.J.Cv.
Exhibit A
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 on MARCH 23, 2021, beginning at 10:00 A.M., 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 Agreements between the Township of Wayne ("Township") and the Wayne Township Planning Board ("Planning Board") and (a) Wayne PSC, LLC dated November 25, 2020, (b) Waynebridge Plaza, L.L.C. dated December 14, 2020, and (c) AvalonBay Communities, Inc. dated  January 8, 2021 ("Proposed Settlement Agreements") 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
If the Courthouse remains closed on the date of the Fairness Hearing, the hearing will be conducted 'virtually' using a web platform called "Zoom" or by participating by telephone. Any person who wishes to remotely 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:ljwww.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/affordablehousing-mt-laurel.htmlmt-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 first settlement agreement is between the Plaintiffs Township of Wayne and Township of Wayne Planning Board and participant Wayne PSC, LLC for the proposed, inclusionary development of a portion of the participant's  property within the Township designated on the Township's official tax maps as Block 3205, Lots 7, which property is otherwise known as the 1210 Hamburg Turnpike and also commonly known as the "Preakness Shopping Center"  Property (the "PSC Settlement Agreement"). Pursuant to the PSC Settlement Agreement, the Township has agreed to a rezoning of that property so as to permit the inclusion of a residential building that will contain a total of up to  244 residential, 'apartment style' rental units of which fifteen percent (15%) or up to 37 units shall be reserved for occupancy by low and moderate income households in satisfaction of a portion of the Township's outstanding affordable housing obligation for the 3rd Round (period 1999-2025).

The second settlement agreement is between the Plaintiffs Township of Wayne and Township of Wayne Planning Board and Intervenor Waynebridge Plaza, L.L.C., for the proposed, inclusionary development of property within the  Township designated on the Township's official tax maps as Tax Block 3207, Lots 18 & 19, which property is otherwise known as the old 'Weinmanns Garden Center' property (the "Waynebridge Settlement Agreement"). Pursuant to the Waynebridge Settlement Agreement, the Township has agreed to modify the existing zoning so as to permit development of a residential building that will contain a total of up to 98 residential, 'apartment style' rental units of which fifteen percent (15%) or up to 15 units shall be reserved for occupancy by low and moderate income households in satisfaction of a portion of the Township's outstanding affordable housing obligation for the 3rd Round (period  1999-2025).

The third settlement agreement is between the Plaintiffs Township of Wayne and Township of Wayne Planning Board and Intervenor AvalonBay Communities, Inc., for the proposed, inclusionary development of property within the  Township designated on the Township's official tax maps as Tax Block 3103, Lots 16 & 19, and Block 3101 Lots 12 & 13, which property is otherwise known as the "Valley National Bank" Property (the "AvalonBay Settlement Agreement"). Pursuant to the AvalonBay Settlement Agreement, the Township has agreed to change the existing rezoning so as to permit development of (a) a residential community that will permit a total of up to 473 residential  units, of which fifteen percent (15%) or up to 71 units shall be reserved for occupancy by low and moderate income households upon said Lots 16 and 19, and (b) a non-residential commercial development upon said Lots 12 and 13; in satisfaction of a portion of the Township's outstanding affordable housing obligation for the 3rd Round (period 1999-2025).

The Settlement Agreements are proposed as components of the Township's intended plan to fully addresses the Township's affordable housing obligations for the Third Round period (1999- 2025), including the Prior Rounds (1987-1999). The Settlement Agreements 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 March 1, 2021, 2021 at the above address, with duplicate copies simultaneously served, by mail and by email if shown below, to the attention of the following:

Henry L. Kent-Smith.
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

John P. lnglesino, Esq., and
Derek W. Orth, Esq.,
(o/b/o AvalonBay Communities, Inc.)
lnglesino 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.

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

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.

Adam M. Gordon, Esq.
Bassam F. Gergi, Esq.
Fair Share Housing Center
510 Park Boulevard
Cherry Hill, New Jersey 08002-3318
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This email address is being protected from spambots. You need JavaScript enabled to view it.

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

Mark J. Semeraro, Esq.
(o/b/o 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 Fiorello, Esq., Special Mt. Laurel Counsel,
Twp of Wayne
Fiorello Puccio & Fiorello, LLC
1044 Route 23 North, Suite 318
Wayne, NJ 07470

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.

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.

Signed: Paul V. Margiotta, RMC, CMC, MMC
Clerk of the Township of Wayne
Dated: 02-16-2021
Rev: 2021-02-10
 
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
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
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