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You’ve seen them in the middle of farmland, on Main Streets in the state’s quaintest towns, and on the shores and banks of the most beautiful lakes, rivers and streams — all across New Jersey: massive, ugly, poorly conceived ultra-high-density, 3, 4 and 5-story housing developments that just don’t fit.

SCORE: Affordable housing – 1, Sprawl – 4

These are predominantly high-priced market units — up to 80 percent or more of them — that yield windfall profits for their builders. Most of them are brought to you by courts that call them a “builder’s bonus” because they include a tiny number of court-mandated “affordable housing” units — a 4:1 ratio. Most of these developments pay no normal property taxes.

New Jersey needs more affordable housing — but not in this form, or at the indefensible costs they exact on taxpayers, or at the risks they pose to water quality and our natural resources, or with little regard to sound planning.

But you wouldn’t know it to look at the monolithic carbuncles that pass for “housing developments” today in New Jersey. And after all the hubbub, the truth is that the Fair Housing Act is actually being abused to generate more high-priced condos and townhouses than “affordable” units for people that need them, all the while giving short shrift to the limits imposed by how much development the land can support. Affordable Housing – 1. Sprawl – 4.

Affordable housing chaos

In 1975, the state Supreme Court ruled that affordable housing is a constitutional right and that every Garden State municipality has an obligation meet its “fair share.” That arrangement, managed by the state Council on Affordable Housing, worked pretty well until then-Gov. Chris Christie shut it down more than a decade ago.

Chaos followed, and lawyers descended. Many towns, who had long complained their affordable housing obligations (commonly referenced as “numbers”) were staggeringly high and unsupportable, found themselves exposed to lawsuits by developers and punitive assignments of huge quantities of new affordable housing units by the courts.

The developers have been aided by a lawyer’s group that calls itself the Fair Share Housing Center. Its website makes them sound like angels. The FSHC is “a nonprofit advocacy organization that uses legal, policy, and community-building strategies to dismantle decades of racial and economic discrimination in New Jersey and nationally that excludes people from the opportunity to live in safe, healthy, and affordable housing.”

Unsupportable numbers & questionable “settlements”

While that sounds nice, it conceals the simple fact that the FSHC is really just a law firm and its goal is the same as most law firms: to generate income for its partners. State records show annual revenue of more than $2.7 million. (FSHC does nothing to dispel misconceptions that it is a state agency acting with government authority — it is no such thing.)

Here’s how it works. With approval of the courts, FSHC “intervenes” in the municipal planning and approval process. Behind closed doors and without the public present, it has “negotiated” settlements with roughly 350 towns to set each municipality’s requirement for its “fair share” of “affordable” housing — that is, its “number”. The settlements often result in towns rezoning from, for example, one housing unit per acre to 15 or 20 units per acre. To make matters worse, principles of sound land use planning are often thrown to the wayside in these deals. Such ultra-high-density development can result in threats to water quality of nearby protected waterways and other valuable natural resources (think farmland and wildlife habitat and open space).

FSHC calls towns “racist” and “exclusionary” unless they agree to build the staggering numbers of units FSHC demands — no matter what the costs.

You’ve seen the results: Affordable housing sprawl and high-rise developments that seem to appear without notice.

Settling a real obligation, or succumbing to wheeler-dealers?

Local municipal officials say there’s nothing they can do to prevent these monstrosities. They also complain the “settlements” they feel pressured to sign by FSHC’s lawyers are based on wheeling-and-dealing negotiations rather than on hard data and science about what the land and their taxpayers can support.

If a town doesn’t “settle” with the FSHC, the FSHC can sue under a so-called “builder’s remedy” which could allow four market rate (high-priced, for-profit) units for every affordable unit required under a town’s obligation. Thus, 20 new affordable units become 100 total new units — and the builder often bags profits that arise from forced rezoning that’s supposedly done in the service of the poor. The result is affordable housing sprawl.

The typical FSHC settlement deal also includes a blank check: Towns agree to come up with unlimited public funds to complete massive housing projects if the developer cannot obtain federal housing subsidies to pay for them. (See also: Did your town pay off Fair Share Housing Center’s lawyers to “settle” affordable housing threats?)

Here are two excerpts of court-approved FSHC settlement agreements that require undefined, unlimited financial liability to be borne by taxpayers:

“…in the case where an application for outside funding is still pending, the municipality shall provide a stable alternative source, such as municipal bonding, in the event that the funding request is not approved.”

And

“In the event for any reason… [the] development is not under construction… within 48 months…The Township shall do this by funding the development using municipal funds…“

In what can only be described as extortion, FSHC, at the last minute when all other terms are agreed upon, according to municipal officials — demands tens or hundreds of thousands of dollars in “donations” or in “legal fees” before its lawyers will finalize the deal. (For a list of how much taxpayer money 56 towns forked over to FSHC, click here.)

One is left to wonder why any town would assume any cost or financial liability for the delivery of affordable housing via such open-ended deals when the Fair Housing Act specifically says they are not obligated to do so. (See also Fake News: Amended settlement is a “win-win” with less “financial risk”! (NOT!)) But so it goes when lawyers “intervene” and officials cower at the legal consequences of not “going along.”

It’s the classic “Heads I win, tails you lose” scenario, but that may be beginning to change. We’ll tell you how in Part 2.

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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.

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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In Part 1 and Part 2 of “Affordable” Housing Sprawl, we considered how a government leadership vacuum and profit-minded developers and lawyers have plagued New Jersey with affordable housing sprawl, and how the Highlands Council is developing new planning and legal guidance to reign in the overbuilding as the next wave of affordable obligations looms.

The Council’s goal is simple: Protect the environment and the drinking water for 70 percent of the state’s residents.

But the Highlands Council is responsible only for the Highlands region, which includes more than 800,000 acres across 88 towns and parts of seven counties.

Clubbing towns like baby harp seals

What’s good for the Highlands may turn out to be good for all New Jersey towns. And how the Highlands will handle the next wave of the affordable obligation may finally put an end to what has been referred to as “affordable housing sprawl.”

Towns outside of the Highlands may recognize that the settlements they are negotiating or have already signed with the so-called Fair Share Housing Center may be profoundly flawed and may deserve reconsideration.

The Fair Housing Act itself, as well as the seminal Mt. Laurel court decisions, seem to be on the Highlands Council’s side — and every town should consider how to take back the law for the advantage of its citizens.

If asked, most New Jersey mayors would say the FSHC is a cudgel used by developers. The late attorney Henry Hill, who sued towns on behalf of developers, was quite outspoken about how easy it is: “I once stated actually in a law review article that municipalities who are faced with Mt. Laurel litigation are not unlike baby harp seals during the periodic Canadian massacres. They can slither and they can squeal, but not for very long.”

Town officials succumb quickly to such legal threats rather than defend their rights. Although a bit indelicate, Henry Hill was right. Today, FSHC carries on Hill’s bullying strategy.

The ultra-high-density rezoning scam

In town after town where well-established zoning has a legal presumption of validity, FSHC forces towns to undo that zoning and adopt ultra-high-density zoning so developers can build loads of highly profitable market housing units.

New Jersey’s problem is not “racist, exclusionary” towns. It’s greedy developers. It’s FSHC’s lawyers that set the table so those developers can gorge on available land. And it’s the courts that facilitate the scam of affordable housing sprawl.

Contrary to the word and spirit of the Fair Housing Act, and in what can only be called a scam, the settlements often violate sound planning practices, dispense with important environmental considerations, and needlessly throw towns into massive debt.

The Highlands Council seems to suggest that legal protections the courts and FSHC have stripped away from towns through intimidation and threats are in fact still in place — but towns are not using them.

The 1975 and 1983 New Jersey Supreme Court Mt. Laurel I and II decisions, and the Fair Housing Act, readily reveal the core rights of towns and property tax payers.

It’s the law: Towns not obligated to pay for affordable housing

“The Supreme Court of New Jersey in its Mount Laurel decisions demands that municipal land use regulations affirmatively afford a reasonable opportunity for a variety and choice of housing including low and moderate cost housing, to meet the needs of people desiring to live there. While provision for the actual construction of that housing by municipalities is not required, they are encouraged but not mandated to expend their own resources to help provide low and moderate income housing.” N.J.S.A. § 52:27D-302h

“Nothing in P.L.1985, c.222 (C.52:27D-301 et al.) shall require a municipality to raise or expend municipal revenues in order to provide low and moderate income housing.” N.J.S.A. § 52:27D-311d

It’s the law: Towns not obligated to ignore sound planning or environmental constraints

“Builders may not be able to build just where they want — our parks, farms, and conservation areas are not a land bank for housing speculators… The specific location of such housing will of course continue to depend on sound municipal land use planning.” Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 211 (N.J. 1983)

“Of at least equal importance, the criteria will not necessarily result in the imposition of the obligation in accordance with sound planning. There may be areas that fit the ‘developing’ description that should not yield to ‘inevitable future residential, commercial and industrial demand and growth.’ Those areas may contain prime agricultural land, open spaces and areas of scenic beauty; apart from these their development might impose unacceptable demands on public investment to extend the infrastructure required to support such growth.” Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 224 (N.J. 1983)

The Highlands Council’s thrust to enforce water-quality protection laws to curtail unsupportable new housing of any kind seems to be a warning to the courts themselves — and to the courts’ hit-men at FSHC.

Outdated courts and judges

Echoing the executive director of the Highlands Council is R. William Potter, a leading attorney in land use, environment and energy at Potter & Dickson. Potter explicitly takes to task the outdated activism of courts and judges that seem to favor the always extremist and often thuggish FSHC lawyers. In a New Jersey Spotlight op-ed sure to raise cries of blasphemy from FSHC’s adherents, Let’s reexamine impact of the ‘Mount Laurel doctrine’, Potter also chides lazy and unsophisticated municipal personnel and their consultants:

“It’s high time for planners, lawyers, municipal officials, environmental groups and journalists, among others, to take a deep dive into the record of how the ‘Mount Laurel doctrine’ has been construed and applied over the past four decades: What did it mean then and what does it mean today, and — most important — what are the lessons learned and not learned.

“A further question that has received scant attention is the impact on the judiciary, which may raise delicate issues of judicial fairness and even-handedness.” -R. William Potter

With the sometimes questionable support of certain judges (see South Brunswick Accuses Judge Of Conflict Of Interest In Affordable Housing Battle) FSHC has bullied hundreds of towns into settlement deals that deliver many more market units than affordable units.

Together with the courts, FSHC clearly puts market-housing construction and builders’ profits ahead of sound planning, water quality, environmental protection and prudent public fiscal practices. It is impossible to imagine how FSHC’s disregard does not hurt “the poor.”

For example, when the Highlands Council warns that FSHC has negotiated settlements with Highlands towns for 16,000 affordable units — more than the region’s resources can support — doesn’t resulting ground water pollution infect new affordable housing residents, too? What does FSHC tell the judge at the required “fairness hearing” where each settlement receives court approval? (For an illustration of how haphazard fairness hearings can be, see Clinton Township violates Sunshine Law, interferes with affordable housing fairness hearing.)

A more robust approach to affordable housing & protection of natural resources

Perhaps the Highlands approach will show the way for towns to fulfill a legitimate obligation to provide housing, while also protecting — for residents old and new, well-to-do, and of average and lesser means —  their critical natural resources from exploitation by profiteers who have selectively interpreted the law to their advantage.

There are at least two stark examples in the law that reveal towns have always had the power to control their planning, their natural resources, their finances, and their future.

1. It’s clear in the law and in the Mount Laurel Court decisions that sound planning, water quality, farmland, open spaces and scenic beauty are not to be compromised in the course of building affordable housing.

2. The Fair Housing Act makes it clear that towns are not obligated to raise or expend municipal revenues to pay for affordable housing.

Asserting protections under the law does not make towns “racist” or “exclusionary.” We’ll have to see whether the FSHC tries to paint the Highlands Council with the same well-worn brush.

Questions for the courts

It’s time for municipalities to stop cowering before the cudgel. They are not helpless baby harp seals. There is no requirement to bond for millions or tens of millions of dollars to build housing of any kind — or to make “donations” to FSHC’s lawyers to get them to sign a settlement deal.

It’s time for municipalities to use the law against the indefensible affordable housing sprawl loosed by the courts. Towns must no longer stand by for the gun-on-the table negotiating style of FSHC’s lawyers — it’s clear the Highlands Council won’t.

This instantly begs the question every town should immediately ask the courts to answer: Will you review all the FSHC settlements against a legal and data model like the Highlands will use? Will you validate the FSHC’s “numbers”?

Affordable housing, YES. Affordable housing sprawl, NO

The Highlands Council’s robust new technical and legal tools may profoundly change the way all towns in New Jersey calculate the number of affordable housing units they are required to build — finally facilitating the delivery of legitimate affordable housing that limited natural resources and taxpayers can support.

Certainly the state can achieve its goals without turning the Highlands region and the rest of New Jersey into a failing land bank for housing speculators.

Part 1  Part 2

Special thanks to veteran news editor Curtis Leeds, affordable housing attorney Mike Jedziniak, and Highlands Coalition Policy & Communications Director Elliott Ruga.

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