By Sunayana Prabhu
RED BANK – Borough officials are on a strict timeline to chart an affordable housing plan for the next decade as the fourth round of obligations begins next year.
Borough officials must adopt a resolution by Jan. 31 with a definitive number of low-to-moderate-income housing units. All municipalities in New Jersey are required to build to comply with the state’s new affordable housing legislation.
With a series of tight deadlines and complex requirements looming from the New Jersey Department of Community Affairs (DCA), Chris Dochney, planner at CME Associates, and Leslie London, the borough’s affordable housing attorney, presented a sobering message to borough officials: Meet the state’s fourth round affordable housing obligations or risk losing legal protections against exclusionary zoning lawsuits.
In a special council meeting held online via Zoom Nov. 18, London and Dochney outlined the intricate process and strict timeline the municipality faces to fulfill its affordable housing responsibilities by the July 1, 2025, deadline.
“The legislation sets forth very specific and aggressive timelines for actions to be taken by each municipality and there are very serious consequences for failure to meet these timelines,” London told the borough officials.
The first critical deadline is Jan. 31, when borough officials must adopt a binding resolution stating whether they will accept the DCA’s calculated affordable housing numbers for the town. These numbers were authorized statewide through the 2024 Affordable Housing Law signed by Gov. Phil Murphy in March. That law directed the DCA to calculate the numbers in a streamlined framework to enforce municipalities’ affordable housing responsibilities under the State’s Fair Housing Act and the New Jersey Supreme Court’s Mount Laurel doctrine of 1975. The court decision set off rounds of affordable housing obligations lasting a decade each that municipalities must comply with or risk losing zoning powers.
The DCA has determined Red Bank has a present need of 54 units for rehabilitation and a prospective need of 154 new construction units. While the borough can challenge the DCA’s figures, Dochney said 154 is a “reasonable and fair number” and advised against challenging it, noting that the complex Jacobson methodology used for statewide calculations would be difficult to refute.
The methodology is a summation of how much available land a municipality has, the wealth or income factor of residents, as well as the commercial development. “So, if you have a whole lot of commercial land, if you have available land, and if you have a lot of wealthy residents, your number is really high. If you have none of those things, your number is really low. That’s basically how they calculate that,” explained Dochney.
However, the borough can work to adjust those numbers through mechanisms like vacant land adjustments and affordable housing credits. Dochney noted Red Bank would likely qualify for a significant vacant land adjustment, as the municipality is largely built out. “Clearly, this is going to be the next huge development. You got small parcels, little parcels here and there, a few vacant parcels, but a full acre of vacant land in Red Bank is a lot of land, and you can’t build too much on an acre to get 154 units of housing there,” he said.
After adopting the resolution by the Jan. 31 deadline, the borough must then file it with the new Affordable Housing Dispute Resolution program within 48 hours and post it on the municipal website. The borough then has until June 30, 2025, to adopt and endorse its housing plan, including a spending plan for its affordable housing trust fund. This plan must also be filed with the dispute resolution program and posted online. Failing to meet this deadline comes with severe consequences: “You would lose immunity in case someone wanted to file an exclusionary zoning litigation against the borough,” London said.
Once the fourth round of obligations begins July 1, 2025, the borough faces an Aug. 31 deadline for interested parties to challenge the validity of its affordable housing plan. If a challenge is successful, the borough must commit to revising the plan by Dec. 31, 2025, with up to March 2026 to amend it.
Inclusionary zoning requirements compel private developers to include affordable units in new projects, whereas exclusionary zoning refers to local governments using their zoning powers to effectively prevent the development of affordable housing and block lower-income residents from being able to live in certain communities. Developers have the right to sue if municipalities reject affordable housing proposals. Two River-area towns, such as Middletown, attempting to save open spaces within its borders, are now engaged in these so-called builder’s remedy lawsuits brought by developers. Adhering to the obligations grants municipalities immunity from these lawsuits.
Dochney further clarified that Red Bank’s obligation is not to construct the affordable units immediately but rather to zone to allow for their development in the next 10 years. This includes identifying areas with redevelopment potential and zoning for at least 25% of the borough’s prospective need, which would equal 39 units in Red Bank’s case. Dochney said inclusionary zoning is a typical way to ensure that number.
According to the DCA, the borough can earn a variety of bonus credits to reduce its overall affordable housing obligation, with the most significant credits coming from supportive/special needs housing, transit-oriented development, and market-to-affordable programs where the borough can use affordable housing trust funds to buy a market rate home to earn credits. There are also bonus credits for projects developed by nonprofit developers and projects that are part of a redevelopment site, among other options.
The article originally appeared in the November 21 – November 27, 2024 print edition of The Two River Times.
