Atty: Jackson will feel impact of housing rules
BY DAVE BENJAMIN Staff Writer

JACKSON - New rules regarding affordable housing in New Jersey will be detrimental to Jackson, according to the attorney who represents Jackson on affordable housing matters.

Appearing before the Township Council at its April 22 meeting, attorney John Russo gave municipal officials an update on how the affordable housing rules relate to Jackson.

"As youmay be aware, on Jan 25, 2007, the New Jersey Appellate Court over- turned many aspects of the state Council on Affordable Housing's (COAH) thirdround rules that were adopted in December 2004," Russo said. "The court remanded [thematter] back to COAH with instructions to promulgate new rules consistent with their findings."

Russo said the new rules were published in December and the comment period ended in March.

"I prepared comments on behalf of Jackson and poured them onto COAH," he said. "Apparently, COAH was inundated with comments as it relates to the new rules."

Russo said there were some significant challenges with the new rules. He noted that COAH just about doubled the overall statewide need for affordable housing units.

COAH staffers "determined that 115,066 affordable units must be provided between 2004 and 2018," Russo explained. "Previously they identified 52,000 units to be delivered through 2014."

Russo said in that regard COAH increased themunicipalities' obligations and although the rules are rather difficult, an analysis from a land-use law firm in New Jersey that calculated everymunicipality's affordable housing obligation concluded that Jackson has a 1,041-unit third-round obligation.

"To put that in [its proper] perspective, the prior two rounds had a total of 1,323 units," he said. "This one round is almost as large as the prior two rounds."

"This is an extra additional burden on Jackson," council President Ann Updegrave said.

"In the prior rounds," Russo explained, "Jackson was No. 2 in its obligation behind Toms River, and now under the thirdroundmethodology everymunicipality has an obligation."

Previously, cities such as Newark and Jersey City did not have an affordable housing obligation, but now they do.

"They have larger obligations than Jackson, but Jackson is still up there as one of the top (municipalities) and will be one of the top municipalities that actually make an effort to comply" with the regulations, Russo said. "As you know, the only benefit that you get from complying with the Fair Housing Act and COAH regulations is protection from builder's remedy litigation."

The attorney said towns that do not have vacant land do not have that concern.

Russo said urban centers such as Jersey City and Newark that do not have large tracts of undeveloped property do not have that fear, so they will not participate.

Jackson has a concern about litigation from builders because the township has a fair amount of undeveloped property, so there is no option but to comply in some fashion, he said.

To date, most of Jackson's COAH efforts have been made to satisfy priorround obligations and to straighten out Jackson's affordable housing plan. There is now a plan in the court that addresses the 1,323-unit prior-rounds obligation.

Russo said COAH staffers will look at vacant land dating back to Jan. 1 , 2004. He said fromhis review of the data, COAH looked at vacant land as of 2002, which means if Jackson had developed any property or had land that became less developable because of wetlands buffers or open space preservation, that was not factored in and COAH considered that to be vacant land.

He said COAH staffers used aerial photographs, and if property looked like vacant land, they counted it as such.

"Out of that vacant land they determined that Jackson had the potential to grow (in a certain way) and that's how they came up with this number," he said. "If you grow at a greater rate than that ratio, then your affordable housing obligation will go up. So, COAH has amechanismto capture if you grow greater than that, but if you don't it doesn't matter."

Councilman Angelo Stallone asked if the township was near having the secondround affordable housing obligation satisfied, and Russo answered yes.

Stallone then asked if a developer, under the third-round obligation, files a builder's remedy lawsuit, how will that impact the township.

Under a builder's remedy lawsuit, a successful complaint results in a builder being permitted to construct market-rate housing in addition to constructing affordable housing units that are sold or rented to individuals who have an income that meets guidelines established by COAH.

Russo explained that the third-round rules require giving a benefit to the developer to provide affordable housing. Basically that is 20 percent of affordable housing that is set aside, he said.

"The problem is that Jackson, like many other towns, is looking for ways to reduce development, particularly residential development, because of the situation with schools, taxes, municipal services, traffic and the environment," Russo said. "These policies are in conflict with one another. You lose your ability to plan and develop your town in a manner that makes sense for the objectives that Jackson has and also for the objectives that New Jersey has."

Providing for a significant amount of residential development just to satisfy the affordable housing rules puts Jackson in a very difficult spot, Russo told the council.

Russo explained that COAH's original third-round rules required that as municipalities grew, they would accrue an affordable housing obligation. That obligation said that for every eight market rate units that were built, the town had to provide one affordable housing unit and that for every 25 jobs that were created in a town, the municipality had to provide one affordable housing unit.

The revised third-round ratio is one affordable unit for every four new residential units and one affordable unit for every 16 jobs created.

"Basically, they doubled the obligation," the attorney said.

Councilman Scott Martin said this situation causes a lot of difficulty when it comes to attracting businesses.

"Jackson has a choice to make regarding commercial development," Russo said. "Do they make the developer provide the affordable housing units via payment in lieu, where they pay the town $165,000 per affordable unit that their projects will generate? The choice is to make the commercial developers pay, which will shut down business in Jackson, or not let the business pay the full amount and just charge them a developer's fee, which is much less, and the taxpayers would have to make up the difference, but you would have commercial development."

Russo said there is no good choice. Once COAH's revised rules become effective, it may be necessary to take the fight to court to show how they are unfair, the attorney said.

"These rules are not fair and not based on sound data," said Russo, who suggested that Jackson officials take a leadership role in fighting the new affordable housing regulations.