Town lawyer expected to release memo defending removal of municipal-wide 20 percent affordable housing set-aside in Princeton ordinance
The lawyer who drafted Princeton’s affordable housing settlement and affordable housing ordinance is expected to release a memo outlining why the former borough’s 20 percent set aside for affordable housing now only applies to properties with five or more units that are rezoned or are located in redevelopment zones.
The Princeton Council passed an ordinance in June of 2020 that eliminates the former borough’s 20 percent affordable housing set-aside for all new developments. The new Princeton ordinance, which applies to developments of five or more units, only requires affordable units when a development requires zoning variances or is located in redevelopment zones. Elected officials were not aware the 20 percent set-aside had been removed until a local site plan review advisory board meeting in February regarding Palmer Square’s proposal to build eight apartments at Griggs Corner, a parking lot on Witherspoon Street across from the public library. When asked during the meeting how many units would be affordable, Palmer Square representatives said none would be. A debate ensued during the public meeting about whether or not Palmer Square had a legal obligation to provide affordable units. Councilman David Cohen said he thought the council extended the former borough’s 20 percent set-aside to the entire consolidated Princeton. The town’s planning professionals disagreed and said in fact that the requirement had been removed unless a developer requires a zoning variance or the project is in a redevelopment zone.
Asked about the issue the following week by Planet Princeton, Cohen said the change was inadvertent and the council was working to rectify the issue. But then in a local newspaper the following week, he said the change was not inadvertent and was purposely put in place by the town’s consultants. Cohen told a reporter that the 20 percent set-aside was removed because of recent legislation and to be in conformance with state law. He did not cite the state law and said local officials were waiting for more details. He told the reporter that to close the loophole, the town would add properties, property by property, to the town’s affordable housing plan. Planet Princeton reached out to him on Friday asking for a citation referencing the state law of a legal case that would make the 20 percent set aside illegal, but he has not responded yet. Officials said the town’s lawyer would be releasing a memo defending the change. Officials are saying the former borough’s affordable housing set aside of 20 percent was illegal.
Over the past week, Planet Princeton has reached out to more than two dozen affordable housing advocates, developers, and lawyers across the state asking them about legislation that would make a municipality-wide affordable housing set aside illegal. None of them were aware of a law or court case that would make such a provision illegal in New Jersey. A legal challenge to affordable housing set-asides in the state has not been successful, housing advocates said, adding that “dozens” of towns still have mandatory set-asides.
Many towns in New Jersey still have affordable housing set-asides that apply to new developments regardless of whether a zoning variance is needed or not. Following are just a few examples representing the variety of affordable housing ordinances:
Any multifamily development of five or more dwelling units in a multifamily residential development that is a rental development shall provide an affordable housing set-aside such that 15% of the dwelling units on site shall be affordable units.C. At least 13% of the affordable dwellings shall be affordable to households earning 30% or less of the median income for the COAH region.D. Where the set-aside requirement of 20% in Subsection A, above, or 15% in Subsection B, above, results in fractional unit, the total set-aside requirement shall be rounded upwards to the next whole number.E. Developers shall have the opportunity to demonstrate that the set-aside percentages set forth in Subsections A and B above render the proposed project to be economically infeasible and, upon the provision of satisfactory proofs, may seek relief, such as, but not limited to, additional density, a monetary subsidy from the City’s affordable housing trust fund, bulk/design waivers, a payment in lieu of taxes, or other forms of relief, provided that developers shall not be permitted to seek reductions in the set-aside required by this chapter.
Summit’s affordable housing ordinance reads, “All zones or districts in which multifamily developments are permitted shall be subject to a mandatory set-aside of affordable dwelling units and shall provide affordable dwellings on-site in accordance with the requirements of this article.A. Any multifamily development of five or more dwelling units in a multifamily residential development that is not a rental development, as described below in Subsection B, shall provide an affordable housing set-aside such that 20% of the dwelling units on site shall be affordable dwellings. As an example, if five units are proposed on a site, at least one affordable unit must be constructed on site.B. Any multifamily development of five or more dwelling units in a multifamily residential development that is a rental development shall provide an affordable housing set-aside such that 15% of the dwelling units on site shall be affordable units.C. At least 13% of the affordable dwellings shall be affordable to households earning 30% or less of the median income for the COAH region.D. Where the set-aside requirement of 20% in Subsection A, above, or 15% in Subsection B, above, results in fractional unit, the total set-aside requirement shall be rounded upwards to the next whole number.E. Developers shall have the opportunity to demonstrate that the set aside percentages set forth in Subsections A and B above render the proposed project to be economically infeasible and, upon the provision of satisfactory proofs, may seek relief, such as, but not limited to, additional density, a monetary subsidy from the City’s affordable housing trust fund, bulk/design waivers, a payment in lieu of taxes, or other forms of relief, provided that developers shall not be permitted to seek reductions in the set-aside required by this chapter.”
Subsection B referred to in the Summit ordinance reads, “The other alternative mechanisms permitted under COAH’s regulations include the purchase of an existing market-rate unit at another location in the community and its conversion to an affordable price-restricted unit in accordance with COAH’s criteria, regulations and policies; and/or participation in reconstruction and/or buy-down/write-down, buy-down/rent-down programs. An applicant shall only be entitled to satisfy its affordable housing obligation via one or more of the alternative mechanisms set forth above if the applicant demonstrates to the Common Council that one or more of the alternatives better advances the goals and policies set forth in the City’s Housing Element and Fair Share Plan. The Common Council shall have the complete discretion to determine whether the alternative(s) better advances the goals and policies set forth in the City’s Housing Element and Fair Share Plan.”
Montclair has a 20 percent set-aside rule that reads: “Any development containing five or more dwelling units is required to include at least 20 percent or one in five of the total number of units within the development as affordable units.” When the total number of units in the development divided by five results in a fraction, the developer shall provide an additional affordable unit on-site, or an affordable unit off-site in a location approved by the Montclair Housing Commission, or a cash-in-lieu financial contribution to the Affordable Housing Trust Fund.
An ordinance adopted in Glen Ridge Borough in April of 2019 requires an affordable housing set-aside for five or more units “as a result of a subdivision or site plan approval, rezoning, use variance, redevelopment plan or rehabilitation plan approved by the borough or the planning board. “For inclusionary projects in which the low and moderate units are to be offered for sale, the minimum set-aside percentage shall be twenty percent; for projects in which the low and moderate-income units are to be offered for rent, the minimum set-aside percentage shall be fifteen percent. Where the set-aside percentage results in a fractional unit, the total set-aside requirement shall be rounded upwards to the next whole number,” reads the ordinance. “Nothing in this section precludes the borough or the planning board from imposing an affordable housing set-aside in a development not required to have a set-aside pursuant to this section consistent with N.J.S.A. 52:27D-311(h) and other applicable law. This requirement does not create any entitlement for a property owner or applicant for subdivision or site plan approval, a zoning amendment, use variance, or adoption of a redevelopment plan or rehabilitation plan in areas in need of redevelopment or rehabilitation, or for approval of any particular proposed project. This requirement does not apply to any sites or specific zones for which higher set-aside standards have been or will be established, either by zoning, subdivision or site plan approval, or an adopted redevelopment plan or rehabilitation plan. Furthermore, this requirement shall not apply to developments containing four or less new dwelling units. Where a developer demolishes existing dwelling units and builds new dwelling units on the same site, the provisions of this section shall apply only if the net number of dwelling units is five or more.”
In Glen Rock, the affordable housing ordinance states that new residential development shall be subject to the growth-share affordable housing requirement based on the net increase in the number of dwelling units. The ordinance requires that one unit be affordable for every eight built: “Except for residential inclusionary developments which are otherwise required by ordinance to have a set-aside of low- and moderate-income units, any applicant for a residential development in Glen Rock Borough that includes eight or more residential lots and/or dwelling units shall be required to provide one affordable housing unit on-site for every eight market-rate units. For developments that result in a number of market-rate residential units not evenly divisible by eight, the developer may make a payment in lieu of constructing the additional affordable unit.” All nonresidential development shall be subject to a growth share affordable housing requirement based on the net increase in square footage. Any building floor area demolished before January 1, 2004, shall not apply to the net calculation. Any applicant for a nonresidential development in Glen Rock Borough that includes the creation of new jobs shall be required to provide the number of affordable housing units equivalent to one affordable housing unit for every 25 new jobs created by the development. For developments that result in a number of jobs not evenly divisible by 25, the developer may make a payment in lieu of constructing an additional affordable unit. For residential development which proposes less than eight residential units or nonresidential construction that calculates to less than 25 jobs, the developer shall be required to provide a cash contribution for each new housing unit or job.
Except for major subdivision or site plan approvals involving eight or more units or 25 or more jobs where on-site production of affordable housing units is required, and if the applicant obtains advanced written permission from the Glen Rock Borough Council, the applicant may choose to satisfy its affordable housing obligation with one or more of the following alternatives: On-site production of affordable housing units; the purchase of an existing market-rate dwelling unit within the municipality and its conversion to an affordably priced unit; the purchase of an existing market-rate dwelling unit within the municipality and its conversion to an alternative living arrangement facility (i.e., group home); participation in gut rehabilitation and/or buy-down/write-down or buy-down/rent-down programs; or a payment.
In Chatham, residential developments with five or more units must set aside a minimum of 20 percent of the total number of units as affordable housing for owner-occupied developments and 15 percent for rental developments. Residential developments with fewer than five units must make a payment in lieu of on-site construction of affordable units to the Chatham Borough’s Affordable Housing Trust Fund based on the fractional affordable housing requirement for the development. Any property that is zoned for nonresidential uses and that is subsequently rezoned for residential purposes or receives a zoning change or a use variance to permit residential development, or receives a zoning change or a density variance to permit higher density residential development, and provided such residential development provides a sufficient compensatory benefit in terms of the density of development permitted, shall provide an affordable housing set-aside of 15 percent if the affordable units will be for rent and 20 percent if the affordable units will be for sale.
In Maplewood, the affordable housing set aside applies to developments that are part of a rezoning, variance, or redevelopment plan approved by the township land use board that results in multi-family residential development of five or more new dwelling units. The affordable housing at a set-aside rate is 20 percent for for-sale affordable units and 15 percent for rental affordable units. If the township or a township land use b permits the construction of multifamily or single-family attached residential development that is “approvable” and “developable,” the township or the township’s land use board shall require that an appropriate percentage of the residential units be set aside for low- and moderate-income households. The requirement applies to any multifamily or single-family attached residential development, including the residential portion of a mixed-use project, that consists of five or more new residential units, whether permitted by a zoning amendment, a variance granted by the township’s land use board, or the adoption of a redevelopment plan or amended redevelopment plan in areas in need of redevelopment or rehabilitation. For any development for which the township’s land use ordinances already permitted residential development at a specific density, the requirement only applies if the township permits an increase in the permitted and approvable, and developable residential density to at least twice that already permitted. According to the ordinance, nothing “precludes the township or the township’s land use board from imposing an affordable housing set-aside in a development not requited to have a set-aside pursuant to the paragraph consistent with N.J.S.A. 52:27D-311(h) and other applicable law.” For inclusionary projects in which the low and moderate units are to be offered for sale, the appropriate set-aside percentage is 20 percent. For projects in which the low- and moderate-income units are to be offered for rent, the appropriate set-aside percentage is 15 percent. “This requirement does not create any entitlement for a property owner or applicant for a zoning amendment, variance, or adoption of a redevelopment plan or amended redevelopment plan in areas in need of redevelopment or rehabilitation, or for approval of any particular proposed project,” reads the ordinance.
Collingswood’s ordinance reads,”Any property in the Borough of Collingswood that is currently zoned for nonresidential uses and that is subsequently rezoned for residential purposes or receives a zoning change or a use variance to permit residential development, or receives a zoning change or a density variance to permit higher density residential development, and provided such residential development provides a sufficient compensatory benefit in terms of the density of development permitted, shall provide an affordable housing set-aside as set forth in Subsection E(3) below. The determination of a “sufficient compensatory benefit” shall be a density that is above the presumptive density pursuant to N.J.A.C. 5:93-5.6.(3) Any rental or for sale multifamily development of five or more units and a density of eight dwelling units per acre or greater in the Borough shall be required to set aside a minimum of 15% of the total number of units as affordable housing units. Where this requirement results in a fraction of a unit, the fraction shall be rounded to the nearest whole unit. Fractions of less than 1/2 shall be rounded off to the lower unit and fractions of greater than 1/2 shall be rounded off to the higher whole unit.”
A spokesman for Fair Share Housing, a nonprofit that advocates for affordable housing in New Jersey, said the organization wants to see new development in Princeton include affordable housing.
“Princeton is one of the nation’s most desirable communities, and we want to make sure that it remains a place where all people, no matter their race or socioeconomic status, can afford to live,” Spokesman Anthony Campisi said on Friday. He said Fair Share Housing has reached out to Princeton officials about the municipality’s affordable housing ordinance and wants to work with them to resolve the set-aside issue.
Krystal Knapp is the founding editor of Planet Princeton. Follow her on Twitter @krystalknapp. She can be reached via email at editor AT planetprinceton.com. Send all letters to the editor and press releases to that email address.
Excellent piece. Superb reporting by tracking down these other instances that refute the statement made about state law
Thank you for reporting on this. Former council member Crumiiler’s letter in the Opinionator section is a breath of fresh air.
It’s really interesting that some officials are saying it was a mistake and others are saying it was deliberately done due to new state law.
This case is a classic example about why transparency in government is important. This issue would have been raised initially if the public were always able to see the ordinances the government is voting on in advance. Often, these last minute changes are only released at the meeting where they are voted on. Changes like this should be highlighted so the public can easily see what is being changed. Many times, changes like this are buried in the text of the document. This is not a good government practice. Princeton can do better!
Princeton’s municipal attorney posted his memo today about the affordable set-aside. He takes issue with the story above but doesn’t explain the reasoning why the set-aside requirement that would have applied to the Palmer Square development was dropped. Personally, I found the memo to be rather self-serving by saying that “rumors and conspiracy theories have been exacerbated in news reports and on social media.” The memo gives the need to update the policy to meet current state law as the basis for the revision, but doesn’t address whether the dropping of the set-aside was required. It still looks like the attorney, Council, and former Mayor dropped the ball on this issue.
This is a tempest in a tea cup. The memo from the town’s attorney is very detailed and explicit. These are very arcane legal concepts and language for most of us, which may have led to a number of misunderstandings, but Princeton is better off today, in terms of fulfilling our commitment to increasing affordable housing and enriching our community’s socio economic and cultural diversity. I. for one, am very grateful to our previous Mayor and current Council members for getting us over the hump and finally settling the law suit with Fair Housing, which would have not been necessary if Princeton would have been more reasonable, nor consumed so much time and cost us so much money, not to mention the continuous harm caused to hundreds of low and moderate income households on our affordable housing waitlist, . I haven’t checked every ordinance listed in the article, but just looking into the first one from Collingswood, the paragraph directly above the language cited in the article, contains EXACTLY the same language as Princeton ordinance regarding the applicability of set-asides to a property which is “…subsequently rezoned,,,or receives a zoning change, or a use variance to permit residential development… and provides a sufficient compensatory benefit…” The memo from our attorney clearly estates the legal precedent that requires that set-aside mandates be accompanied by a realistic incentive for developers to build housing. and that is the NJ Supreme Court decision referred to as Mount Laurel IV in 2015. Any municipality that has an outdated ordinance has had or will have to eventually modify it along these lines. I hate to admit it, because I don’t think Palmer Square has been, historically, a good corporate citizen,, but in this instance we can’t legally force their hand. The good news is that, apparently, there are probably few if any other propertie of these characteristics that could bypass the 20% set-aside.
Seems to me a town like Summit with such a broad-reaching and reasonable affordable housing ordinance would keep their ordinances up to date. But acknoledging other town’s have better affordable housing ordinances than we do would dash our beliefe in Princeton exceptionalism, so we find ways to rationalize what has been done here. The article doesn’t give all the full wording for Summit, but the link does. I don’t think Palmer Square would have gotten away with no affordable units if we had such an ordinance as follows as Summit does:
Quantification of affordable housing obligation for multifamily developers.
All zones or districts in which multifamily developments are permitted shall be subject to a mandatory set-aside of affordable dwelling units and shall provide affordable dwellings on-site in accordance with the requirements of this article.
A.
Any multifamily development of five or more dwelling units in a multifamily residential development that is not a rental development, as described below in Subsection B, shall provide an affordable housing set-aside such that 20% of the dwelling units on site shall be affordable dwellings. As an example, if five units are proposed on a site, at least one affordable unit must be constructed on site.
B.
Any multifamily development of five or more dwelling units in a multifamily residential development that is a rental development shall provide an affordable housing set-aside such that 15% of the dwelling units on site shall be affordable units.
C.
At least 13% of the affordable dwellings shall be affordable to households earning 30% or less of the median income for the COAH region.
D.
Where the set-aside requirement of 20% in Subsection A, above, or 15% in Subsection B, above, results in fractional unit, the total set-aside requirement shall be rounded upwards to the next whole number.
E.
Developers shall have the opportunity to demonstrate that the set aside percentages set forth in Subsections A and B above render the proposed project to be economically infeasible and, upon the provision of satisfactory proofs, may seek relief, such as, but not limited to, additional density, a monetary subsidy from the City’s affordable housing trust fund, bulk/design waivers, a payment in lieu of taxes, or other forms of relief, provided that developers shall not be permitted to seek reductions in the set-aside required by this chapter.
§ 35-18.2
Permissible manner of satisfaction of affordable housing obligation of residential developers.
A.
For all residential development, an applicant shall satisfy its affordable housing production obligation through on-site housing production in connection with the residential project, which is one of the mechanisms permitted pursuant to COAH’s regulations.
B.
The other alternative mechanisms permitted under COAH’s regulations include the purchase of an existing market-rate unit at another location in the community and its conversion to an affordable price-restricted unit in accordance with COAH’s criteria, regulations and policies; and/or participation in reconstruction and/or buy-down/write-down, buy-down/rent-down programs. An applicant shall only be entitled to satisfy its affordable housing obligation via one or more of the alternative mechanisms set forth above if the applicant demonstrates to the Common Council that one or more of the alternatives better advances the goals and policies set forth in the City’s Housing Element and Fair Share Plan. The Common Council shall have the complete discretion to determine whether the alternative(s) better advances the goals and policies set forth in the City’s Housing Element and Fair Share Plan.
C.
Full and complete satisfaction of compliance with the affordable housing requirements of the development shall be a specific, automatic, essential and nonseverable condition of all land use approvals. Pursuant to this condition, the applicant must demonstrate that it has satisfied the Zoning Board’s affordable housing condition of approval prior to obtaining the first building permit and compliance with the affordable housing condition should be a continuing condition of all Board approvals for development.