ZapYour Zoning Powers Have Disappeared

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A judge’s ruling could force towns to expedite housing-project approvalsCarlstadt/East Rutherford – Builders and towns across the state are closely watching a Bergen County case in which a judge this month stripped Carlstadt and East Rutherford of their zoning powers. The ruling by state Superior Court Judge Jonathan Harris could mark a turning point in the ongoing battle between developers that seek to build high-density housing and communities that fight to keep such projects out.

In a May 19 decision that stunned New Jersey municipalities, Harris said the towns had failed to meet their obligation to provide affordable housing under a 1975 state Supreme Court ruling known as the Mt. Laurel doctrine. He suspended both towns’ land-use authority for an indefinite period, transferring it to a court-appointed monitor. The towns are expected to appeal the decision.

Affordable housing is broadly defined as a home that costs no more than 30% of household income. Under the ruling, towns must provide a realistic opportunity to create housing for low- and moderate-income households.

In the Bergen County case, Tomu Developers of Mahwah seeks to build 840 condominiums, including 140 affordable-housing units, in two 18-story towers. They would occupy nine acres of a 25-acre site that straddles Carlstadt and East Rutherford along the Hackensack River waterfront.

The towns argue that the high-rise projects would create traffic nightmares and threaten adjoining state-protected wetlands. In addition, they say that since the site is part of the Meadowlands, the developer cannot proceed without permission from the Meadowlands Commission.

Harris’ ruling could set a powerful precedent on behalf of builders, says Thomas J. Hall, chair of the department of land-use and planning at the Sills Cummis law firm in Newark, which represents Tomu.

Peter Reinhart, general counsel for K. Hovnanian in Red Bank, New Jersey’s largest state-based homebuilder, says he hopes the ruling “will cause communities to consider the letter and spirit of the state’s affordable-housing laws.”

Reinhart says Hovnanian is “very aware that many places in New Jersey use zoning and other land-use regulations to stop the construction of affordable and market-rate homes.” He says such practices have created “an acute housing shortage” and “driven the cost of housing up” in the state.

”The recalcitrance of the municipalities left [Harris] no choice, and their foot-dragging was wholly unsatisfactory,” says Patrick O’Keefe, CEO of the New Jersey Builders Association and a leading lobbyist for the industry. “And so, while he came to this reluctantly, he nonetheless came to it vigorously.”

Harris last November gave the towns six months to “legislate frameworks that would constitute compliance” with their affordable-housing obligations. At the same time, he appointed a special master to advise him of the towns’ progress.

Harris found that the zoning changes the towns proposed to meet their obligations did not go far enough. These included an effort to carve out affordable-housing opportunities in commercial districts and on industrial sites. The judge said the plans lacked detail and failed to specify how many affordable units they would yield.

Harris says he chose to suspend the towns’ zoning and planning powers instead of charging them with contempt of court in order “to avoid the martyrdom syndrome that some public officials exploit.”

Yet to be seen is how Robert T. Regan, the court-appointed monitor, who also is township attorney for Edgewater, Upper Saddle River and Midland Park, will handle the many redevelopment projects that Carlstadt and East Rutherford have on their boards. Harris has ordered both towns to make available to Regan all the resources that he needs.

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