By Anne Levin
A court order issued by Mercer County Superior Court Judge Robert Lougy on Friday, February 13 has given Princeton the green light for adopting the Fourth Round Housing Element and Fair Share Plan (HEFSP). It also adopts in full the recommendations of the Affordable Housing Dispute Resolution Program.
According to a release from the municipality, the court approves the settlement agreement between Princeton and the Fair Share Housing Center; approves Princeton’s amended HEFSP for the Fourth Round housing cycle; dismisses the challenges filed by the Princeton Coalition for Responsible Development (PCRD); the challenges by [Sean] Wilentz, [Caroline] Cleaves, and [John] McPherson; and authorizes and directs the municipality to adopt and file all implementing ordinances and resolutions on or before March 15.
Failure to meet the deadline would preclude issuance of a Certification of Compliance, and result in the loss of immunity from exclusionary zoning litigation, according to the release. “We are fully prepared to adopt the implementing ordinances necessary to secure final certification by the March 15 deadline,” said Princeton’s Municipal Planner Justin Lesko.
Lougy concluded that the settlement “is fair and equitable,” and that Princeton’s amended HEFSP provides a “realistic opportunity” for the construction and delivery of housing affordable to low- and moderate-income households. Upon compliance, Princeton will retain immunity from builder’s remedy litigation during the Fourth Round housing cycle, which lasts through 2035. Builder’s remedy law allows developers to bypass local zoning when the jurisdiction is not compliant with state housing requirements.
Councilwoman Mia Sacks, who chairs Council’s Affordable Housing, Planning, and Redevelopment Committee said, “We are extremely pleased that the court has accepted the Program’s recommendation to adopt Princeton’s Fourth Round Plan in its entirety. This successful outcome represents many years of work, and enables Princeton to fulfill its housing obligation over the next decade through thoughtful planning rather than courtroom uncertainty.”
Lougy’s decision follows the Affordable Housing Dispute Resolution Program Recommendation issued February 10 by Judge Thomas C. Miller. That recommendation found that Princeton’s HEFSP and settlement with the FSHC, “establish a clear, internally consistent, and legally sufficient framework for satisfying the Municipality’s cumulative affordable housing obligations.”
The settlement agreement “consolidates prior unmet need obligations with Fourth Round prospective need into a single, unified compliance framework totaling 364 credits.”
In a separate professional review, the program’s special adjudicator, Christine Confone-Navarro, concluded that the settlement agreement “fully accounts for Prior Round, Third Round, and Fourth Round obligations; identifies realistic compliance mechanisms; and establishes enforceable implementation, monitoring, and enforcement provisions. The special adjudicator similarly recommended approval of the settlement agreement,” reads the release.
In addressing the challenges to Princeton’s Fourth Round Plan from PCRD and Wilentz, Cleaves, and McPherson, “Miller concluded that the constitutional nature of New Jersey’s affordable housing obligations, together with the fact that historic preservation and other public policy considerations are appropriately addressed through the municipal land use approval process, warrant dismissal of the challenges,” reads the release.
Both Miller and Cofone specifically found that the much debated apartment complex at 108 Stockton Street, on the former Tennent-Roberts-Whiteley campus of Princeton Theological Seminary “… is set to deliver 48 affordable homes in a highly suitable location that is proximate to transit, services, and employment opportunities.” The redevelopment is supported by an adopted Redevelopment Plan and executed Redevelopment and Financial Agreements, and has been endorsed by the Fair Share Housing Center.
Responding to the February 13 decision, the PCDO issued a statement through former Princeton Councilwoman Jo Butler, who lives near the site and has been actively involved in challenging the development.
“While we recognize the importance of affordable housing obligations under New Jersey law, and in fact, we have advocated for a greater share of the project to be dedicated affordable housing, our challenge focused on whether the regulatory standards governing site suitability and compliance were properly applied,” Butler said in an email. “We believe those questions deserve careful legal review. PCRD is consulting with counsel and evaluating all available options, including the possibility of an appeal. Our goal has never been to impede affordable housing, but to ensure that it is implemented in a manner consistent with the law, sound planning practice, and Princeton’s historic context. We remain committed to constructive engagement as this process moves forward.”
Attorney Bruce Afran, who represents Wilentz, Cleaves, and McPherson, wrote in an email: “Judge Lougy accepted Judge Miller’s recommendation that the Town’s Seminary project can go forward. However, he also adopted Judge Miller’s recommendation in full, which is highly significant.
“Judge Miller stated that he recognized that Professor Wilentz, Ms. Cleaves and Professor McPherson have raised a proper issue of conflicting public policies regarding historic preservation and affordable housing. His recommendation states that he understood that Wilentz, Cleaves, and McPherson are expected to appeal to the Historic Sites Council for an order that the Town does not have the legal right to include a historic district in fulfilling its affordable housing obligation.
“While Judge Miller did not comment on the likely outcome of that case, he recognized that the challenge will move to a new forum and will continue. Judge Lougy has accepted Judge Miller’s recommendation in full and this includes Judge Miller’s statement that a proper conflict of issues is at stake and that the matter will simply shift to the Historic Sites Council for further litigation.
“The Historic Sites Council has authority over this matter because the Town’s inclusion of the Historic District in the affordable housing plan is ‘state action’ that is designed to carry out the Town’s legal obligations and it makes no difference that the actual building would be privately constructed. Therefore, Professors Wilentz and McPherson and Ms. Cleaves will be filing an application seeking such a ruling from the Historic Sites Council.”
Following the March 15 submission of Princeton’s Fourth Round implementing ordinances, the Court will schedule a Fairness and/or Compliance hearing in order to issue a Certification of Compliance, thereby securing Princeton’s protection from exclusionary zoning litigation for the Fourth Round cycle, according to the municipality.