In Part 1 of “Affordable” Housing Sprawl, we saw how a government leadership vacuum and profit-minded developers and lawyers have plagued New Jersey with the high-rise sprawling residential units that are now appearing across the state, including in rural areas such as Hunterdon County. But the cozy consortium may have finally acquired an able adversary in the Highlands Council.
Highlands Council opens new front against affordable housing sprawl
The Council’s full name is the Highlands Water Protection and Planning Council. That’s an important detail because protecting water quality requires planning, and the Highlands region for which the Council is responsible covers more than 800,000 acres across 88 towns and parts of seven counties.
The Council’s Executive Director Ben Spinelli said in a press release that it’s not enough for a town to meet its affordable obligations. Towns in the Highlands region “also have an equal, if not more imperative, obligation to protect the drinking water resources for 70 percent of the state’s residents.”
Spinelli notes that providing affordable housing and protecting the environment “are not mutually exclusive goals, but they do require careful and thoughtful attention” and the Council is taking action.
Last month, it awarded a $100,000 contract to an engineering firm to help it and its 88 constituent towns prepare for the next “round” of affordable obligations (a.k.a. Round 4), which is set to begin in July of 2025. The Council wants to be sure that its master plan “guides decision making when it comes to affordable housing.”
The Council is acting now in part because of what’s happened in the past. In the last wave of affordable housing negotiations, 67 of the 88 towns in the Highlands reached agreements for more than 16,000 affordable units. That’s “far more than the resources of the region can handle,” the Council says.
The work will be done by the Colliers Engineering & Design team that has worked with the Council staff in the past. The team also includes the law firm of Surenian, Edwards, Buzak & Nolan, which the Council believes is “one of the preeminent law firms in the state … involving affordable housing and related litigation.” The work is to be completed next year and when that happens funding will be available to help towns plan for the next wave of affordable housing obligations.
It now seems other New Jersey towns may have a model to follow to ensure their resources do not succumb to unsupportable affordable housing plans. The underpinnings of this Highlands project may benefit towns that previously buckled under often unjustified pressure to rezone themselves into ultra-high-density residential sprawl.
Questions about the law and about planning
The Highlands Council’s recent statement pointed out that New Jersey faces a serious conflict:
“Although the Fair Housing Act was passed along with the State Planning Act in an effort to ensure sound planning principles guided affordable housing decisions, with the dissolution of the Council on Affordable Housing (COAH) those principles have not remained at the forefront.”
Here is a brief sketch of the court’s idea of good land use planning:
FSHC negotiates a settlement with a rural town to build its obligation of 20 units — for the benefit of the poor — on an acre of farm land. But to get FSHC to sign the settlement (or get sued), the town must agree to rezone that acre and four more — from one home per acre to 20 per acre. The extra four acres of farmland will now accommodate 80 market units for the benefit of the developer building the whole thing — affordable housing sprawl.
Who gets the bigger benefit? The poor or the developer?
Without the Fair Housing Act, FSHC and the iron fist of the courts, that developer would never have gotten the town to break its long-time zoning, especially considering New Jersey’s strong “home rule” tradition. No town would volunteer to rezone 4 acres of prime farmland to facilitate an ultra-high density, ultra-profitable 80-unit high-rise. The Fair Housing Act thus yields a few affordable units, but pays off handsomely at a 4:1 ratio to a developer.
Who was the FHA written for? For whose benefit do the courts really interpret the law?
The FSHC and the courts slink off, claiming 20 new homes for the poor and victory over a “racist, exclusionary” rural town. It may be feasible and even desirable for the town to accommodate 20 low- and moderate-income households — new housing for the local car mechanic, first-year cop, teacher in training and junior sales rep.
But why is the town penalized with the costs of absorbing 80 more high-rise, high-income, high-priced housing units?
Highlands Council confronts the elephant in the room
The new Highlands initiative seems intended to re-focus everyone on what the law really says about good planning to balance affordable housing and natural resources preservation.
Where did COAH find all that “vacant” land? Attorney Stuart Koenig explained to the Hunterdon Review (2/19/09): “As many municipalities have complained, we found airports, cemeteries, sewer plants, municipal buildings, county facilities, a detention facility, an incinerator, roadway medians and intersections, rear yards of homes, yard areas of commercial development, open space in condominium and cluster developments, all shown as vacant land… ” where units supposedly could be built.
Does it appear that FSHC is playing a bit fast and loose with the “numbers” that towns in the Highlands are “obligated” to build? It seems nothing has changed since 2009 — and the Highlands Council is still finding errors in court-sanctioned numbers (see sidebar).
Whether or not the Council names the ideological culprit, it is already at serious odds with FSHC’s settlement deals. It appears science, data and the law are about to raise serious questions about the legitimacy of settlement deals the courts have already approved both in and outside the Highlands.
The Highlands: Canary in N.J.’s coal mine?
New Jersey’s other roughly 300 towns and cities are now left to question the onerous settlement deals they signed with FSHC.
Are the deals they made based on facts and hard science about the carrying capacity of the land? Or did FSHC bamboozle them amidst threats and accusations of racism and exclusionary zoning? Most towns have their own engineers, planners and land-use lawyers, but none dedicated — like the Highlands team — to the primary task of protecting their town’s water and natural resources.
The alarm raised by the Highlands Council about over-development echoes the concerns of municipal officials across the entire state. But the 88 towns sitting atop 70% of New Jersey’s drinking water may be the canary in the coal mine. Executive Director Spinelli’s words make it clear that in the Highlands region, the law says the environment must be protected. Cannot the same be said of every town in the nation’s most densely populated state?
In Part 3 we’ll explore what should be obvious: How towns can apply the law and sound planning to ensure that the development of affordable housing does not compromise New Jersey’s limited critical natural resources — or a town’s finances.
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