As the one-month window for filing declaratory judgments has opened, municipalities across Mercer County are now being contacted by property developers throwing their hats into the affordable housing ring. Hopewell Borough received a letter from a major developer indicating an interest in constructing an inclusionary development within Hopewell Borough.
AvalonBay Communities, Inc (“AVB”) delivered a letter, dated June 4, 2015, stating that “AVB is interested in constructing an inclusionary development within your community” and the letter should serve as a “formal notice that AVB is an interested party in the municipality’s compliance with its affordable housing obligations.”
With Fair Share Housing estimating an affordable housing obligation amount for Hopewell Borough to the tune of 155 affordable housing units, it is unclear how many of those affordable units the developer would attempt to construct (in addition to a number of market rate units) or whether the courts would trim down that affordable housing obligation count.
The process of affordable housing has dramatically changed course this year as the authority of COAH (Council on Affordable Housing) was stripped and placed in the hands of the courts. (For the current climate in affordable housing, see Time to Face Affordable Housing, Hopewell Township Plans for Future.) Municipalities are all receiving letters from developers indicating an interested in constructing affordable housing within their borders including Hopewell Township, which received its first letter in May (See Developer Gets in Line for Affordable Housing in Hopewell Township and Scotch Road / Dublin Road Affordable Housing Developer Details).
At the Hopewell Borough council meeting last Thursday, Hopewell Borough Mayor Paul Anzano said regarding whether the Borough would file a declaratory judgment, “We are engaging the appropriate people to decide whether it is worthwhile to participate in that program or not. We are still gathering information.”
The implications of not filing a declaratory judgment may be clear. “Those that do not, however, will be subject to builder’s remedy lawsuits and could be ordered to accept higher-density development — usually four market rate units for every affordable unit,” wrote Colleen O’Dea in COAH is History: State’s Top Court Declares Trouble Agency ‘Moribund,“ on NJ Spotlight. The end result of losing a builder’s remedy lawsuit is that a developer could gain control and force a municipality to construct a housing development where it would otherwise not be permissible to be constructed.
The deadline for filing a declaratory judgment is July 9th. The next Hopewell Borough council meeting is on July 6th at 7pm.