PLANNING BOARD MEETING
BOROUGH OF WANAQUE
MINUTES
January 30, 2007
PUBLIC
HEARING
WANAQUE HOUSING ELEMENT
AND FAIR SHARE PLAN
Salute to the Flag:
ROLL CALL:
John Di Meglio David
Slater
Mayor Dan Mahler
Joseph Graceffo Ed
O’Connell
Kevin Platt John
Shutte
PRESENT:
Attorney Steven Veltri
Adequate notice of this meeting has been provided by the
Planning Board by E-Mailing Notice of this meeting to the Suburban Trends and
the Herald News Newspapers on January 12, 2007 stating therein that this
meeting would be held on Tuesday, January 30, 2007 at the time of 8:00 P.M. in
the Wanaque Municipal Building, 579 Ringwood Avenue, Wanaque, New Jersey and a
copy of this notice was posted on the Bulletin Board in the Wanaque Municipal
Building on January 12, 2007 and a copy is on file in the office of the
Municipal Clerk.
The purpose of this meeting is to pass the new COAH Fair
Housing Element for this Borough. All members received a copy of this element
and certain members have met previously with the planner.
MOTION TO OPEN PUBLIC HEARING TO ANSWER QUESTIONS ON
THE FAIR HOUSING ACT: made by Member Slater, seconded by Member Di Meglio,
voting yes were Chairman Foulon, Members Di Meglio, Mayor Mahler, Graceffo,
Platt, Rucci, Slater, Verba, O’Connell and Shutte.
Sandy Lawson,
David Da Silva,
Tom Carroll, Borough Administrator came forward to answer
Mr. Da Silva’s question. Mr. Carroll went on to say that the plan that was
approved by COAH or Round II initially had the 60 units that Pulte is to build
or to do an RCA. That was the number that COAH initially had put on the
property that the Borough had agreed to and at the last minute after all the
approvals were made for Pulte, all the Developer’s Agreements were in place,
COAH turned around and said no your number has changed. The 60 units was the
initial number that COAH had put on the property based on 50 acres of
developable property at 6 units an acre.
Mr. Da Silva asked if anyone consulted with COAH prior to
changing the zoning and approving the Pulte Plan to see if this would happen? Mr. Carroll said the Borough’s Planner did both the
Housing Element and did all the zoning and there was never any indication from
the planner that the Borough had to do anything with COAH. COAH was aware of it
and it was just that certain people wanted to kill the Pulte Project and were
going to do anything in their power to kill it and hence the Borough got stuck
with the higher number.
Mr. Da Silva asked if the town was certified for the
first or second round at that point and Mr. Carroll said it took six years to
get certified for Round II and the petition had been filed and not certified at
that time. Atty. Veltri said we were certified as of October 2001. Mr. Da Silva
asked if COAH certified the numbers that they were provided before the Pulte
approval. Atty. Veltri said the Housing Element that Mr. Carroll is referring
to was done some time in 1996 and the Governing Body is the body that petitions
COAH for certification and not this Board; this Board just does the Housing
Element and the Fair Share Plan.
Mr. Da Silva said he saw a reference of possibly asking
the Pulte Organization to assume some additional responsibility as part of the
plan and can you describe how you’re going about doing that? Atty. Veltri said
he doesn’t know if Mr. Da Silva is reading that right, but Art Bernard, P.P. is
here tonight who did the plan and he will testify in terms of what he knows and
what the current plan calls for.
Art Bernard, P.P. came forward: Mr. Bernard
started off by saying the discussions, as he understands them between the
Borough and Pulte involve providing more money for Regional Contribution
Agreements. The plan that COAH actually approved included
money for a certain number of units to be transferred out and they were only
going to build about ten units on site and give some money to rehabilitation.
Mr. Bernard wasn’t involved at the time, but in reading all the documents, COAH
decided that it wasn’t acceptable for the Borough to get money
for rehabilitation and if
they were going to get money it had to be for another RCA, which means more
money. Right now, they’re in the middle of negotiations for money that would
pay for another 25 units RCA.
Mr. Da Silva asked if the Planning Board doesn’t approve
the “Water’s Edge” Project and the DEP does not certify the property as being
proper to build on, what’s the back up plan? Mr. Bernard said that the “Water’s
Edge” site is one that’s been in the Borough’s plan for a long time. It was
examined by COAH and COAH determined that it was suitable. The site is suppose to be in a sewer service area and its not and COAH
is going to mandate that the Board cooperate with the developer to get it in a
sewer service area. In terms of the review itself that the Board is going
through, once a site is in a plan and approved by COAH, under the Mt. Laurel
decision, the municipality has a responsibility to cooperate with the developer
in expediting the review and cooperate in granting reasonable variances and
eliminating unnecessary costs. Mr. Bernard added, that
they’re very much aware that “Water’s Edge” is a difficult site, but the Board
has an affirmative obligation to work with that developer and cooperate and
hopefully granting an approval and there should be a very good reason if the
Board finds it can’t grant an approval. The site has been zoned and it was
steep when it was zoned and is no steeper now than when COAH approved it;
therefore, there would have to be a really good reason not to approve it.
Mr. Da Silva said the property north of the
Mr. Da Silva asked Mr. Bernard if he thought in his
professional opinion that it’s a good idea to go forward now
with these numbers today knowing full well they might change in six
months? Mr. Bernard said that’s something we didn’t discuss in the beginning
and it’s a very good question. Mr. Bernard went on to say that the Mayor asked
that question last week. COAH’S Round III rules were overturned on Thursday and
they haven’t been able to come in terms on how they’re going to handle this. Mr. Bernard and Attorney Jeffrey Kantowitz the Borough’s special
counsel has had numerous conversations with COAH’S Acting Director, Melissa
Orson. Mr. Bernard and Attorney Kantowitz asked if these rules don’t
mean anything anymore why are we doing this? The best
Mr. Bernard can offer today is that COAH wants the Borough to adopt a plan
right now because they can’t give the Borough any authorization to not adopt
it. The Borough is under a timeframe from COAH to adopt a plan and the Borough
got a one-month extension to get the plan in, in the middle of February. The
court decision that has been referenced, at the end of the decision, it says
that communities that are under COAH’S jurisdiction will continue to get a
protection from exclusionary zoning law suits and from builders
remedies. Mr. Bernard’s advice is that the Board should continue to act in good
faith to meet COAH’S deadline, stay under COAH’S jurisdiction and get the
protection through builder’s remedy lawsuits. In the resolution that Attorney
Kantowitz has prepared for the Board tonight, the Resolution says that we’ve
adopted this Housing Element but we don’t know what the rules are going to be
and as the rules change we reserve the right to take another look at this plan.
Member Graceffo asked Mr. Bernard, in reference to the
state’s being requested to revise its rules, what does he anticipate that
impact to be, less favorable or more
favorable? Mr. Bernard said he doesn’t know what it means; it means for
the State more units; does it mean more units for Wanaque? Mr. Bernard said he
couldn’t answer that question. Mr. Bernard said all he tell the Board, is if
they adopt this plan and get it into COAH, we’ll stay under their jurisdiction
and Mr. Bernard feels confident that when the rules change the Borough will be
able to change the plan as the Borough sees fit.
Mr. Da Silva also said that the plan describes the fact
that Pulte had given the Borough a payment in lieu of building the affordable
housing and wanted to know what that payment was and whether its being used RCA
or something else.
Borough Administrator Tom Carroll came forward and said
the payment was based on 30 units RCA at that time it was $25,000 per unit with
the caveat in there that whatever was negotiated and has gone to a minimum of
$35,000. It was 20 units of rehab at $15,000 and that’s the number that’s being
negotiated because the 15 is a firm number that was in there. The desire was to
keep the money in town and if the town did rehab they would be able to do it
for homes in town like what was done in the late 90’s; but COAH changed the
numbers and the town can no longer do that.
Mr. Da Silva wanted to know if the funds were used to do
any exchanges for other towns? Mr. Carroll said not
with Pulte and did it with the Hovnanian Project. Mr. Da Silva wanted to know
if COAH requires the Borough to do it within a certain amount of time. Mr. Carroll said no, the Borough will have to
move forward with it when the process of talking to several towns, but until he
knows where we’re going with this whole process and until he can get a firm
commitment from Pulte that they’re going to fund all 50 units, he doesn’t want
to be in a position where we make a commitment to a town and the Borough of
Wanaque has to put money to that.
Mr. Da Silva told the Board he wanted to express his
concern that if the Board decides to go
forward with this plan with “Water’s Edge” in there, he thinks there are major
concerns with that project that haven’t been resolved yet. He also thinks there
should be a plan “B” if this Board decides not to approve the site plan and
also if the DEP decides not to approve the plan.
Sandy Lawson,
MOTION TO CLOSE PUBLIC HEARING: made by Member
Rucci, seconded by Member Di Meglio, voting yes were Chairman Foulon, Members
Di Meglio, Mayor
Mahler, Graceffo, Platt, Rucci, Slater,
Verba, O’Connell and Shutte.
Member Di Meglio wanted to know about the 50 rental units
if you have to find a developer that’s willing to come in and build those 50
units? Mr. Bernard said the pictures that were passed out earlier in the
evening, were submitted by a poor profit developer who’s specializing in
getting pieces of land and building tax credit projects and they work with a
municipality to get it done. Mr. Bernard said he brought two up who have
outlined different approaches to Mr. Carroll and there are others that can do the
job to and he and Mr. Carroll know who they are.
Member Di Meglio asked if Mr. Bernard thought the
developers can make a profit on building 50 units? Mr.
Bernard said absolutely because they get the money from Federal and State
subsidies.
Member Rucci said to Mr. Bernard he doesn’t like sending
a plan down to COAH on
a property that the Borough doesn’t own. As far as “Water’s Edge” it’s no where
near approval and we’re sending something down that’s almost saying that we
will approve this and it’s not something that we have come to a decision on.
Chairman Foulon added, the Board isn’t saying we will approve it, we’re saying
that we’re zoning it for that and at the last meeting we told the developer for
“Water’s Edge” we didn’t like the plan and to start over again.
Mr. Carroll said the zoning on “Water’s Edge” has been
there since the plan was approved in 2001. COAH told the Borough when they were
going through the process, how to go in and its not something new, it’s a plan.
Zoning is a plan for the town and even though we don’t control the property and
we don’t own the property, we do that throughout the town. This now becomes a
process that the property owners are made aware of the fact that we’re
considering this and we will move forward in going through the process. Unless
the Supreme Court agrees with COAH’S rules and overturns the appellate
division, then more than likely we’re going to be back here with the revised
plans, but right now there is something on record and that’s the important
thing that we get the protection from COAH so that somebody can’t come in with
a plan for 70 units and file a builder’s remedy suit against the Borough.
Member Graceffo said when he reviews the plan he’s looking
at Wanaque as a community and in his mind for the most part Wanaque has more
than 50% of its stock in affordable housing and yet we’re still being required
and demanded to put in more. Member Graceffo finds that to be somewhat of a
conflict in terms of we have a significant stock of medium cost of housing and
here we are trying to justify to the state a plan that is going to require us
to provide additional housing that’s affordable to the community. Member
Graceffo finds that in conflict in terms of balancing a community. Their goal
is to provide affordable housing within communities that have higher priced
housing and instead what we’re doing is we have a community that is basically
affordable housing and we’re being asked to put in more affordable housing.
Therefore, for Member Graceffo that is a conflict even though it’s a plan
basically being required by State rules and Supreme Court Decisions.
Mr. Bernard responded to Member Graceffo by saying, the
fact of the matter is that in this state the Supreme Court and their Housing
Act and COAH’S rules has defined Affordable Housing in a certain way.
Affordable Housing is housing that’s actually for the most part deed restricted
for people who earn less than 80% of medium income. Mr. Bernard added, all we
can do frankly is to deal with COAH’S rules and if we deal with them in
good faith then we’re protected from builder’s remedies and when the rules
change we’ll get another shot at it.
Attorney Jeff Kantowitz came forward and said that
municipalities that have acted in good faith in devising fair share plans to
comply with the existing third Round Rules should not be subjected to an
exclusionary zoning law suit. Atty. Kantowitz’s
suggestion is, because COAH has told you to submit a plan and given you a
deadline, has extended the deadline, submit with the reservation that things
are going to change and that we reserve the right to revisit what we’re going
to do. To revisit means maybe you’ll change it and maybe you won’t and you’ll
have the latitude to do those kinds of things. Atty. Kantowitz is suggesting
because of his experience and what he’s practiced, at least at this juncture
the Borough has more latitude and existing protection at COAH than you do at a
court. Atty. Kantowitz said he doesn’t know what a court would do, but the
general thinking is you don’t want to have to be defending on the back end of
the builder’s remedy because you didn’t follow through with what COAH asked you
to do. It’s the Borough’s decision, but what he proposes, is at least submit
the plan and reserve the right to react to the new rules if they require you to
change anything and move forward.
Member Graceffo said to Atty. Kantowitz, he thinks in
this particular area North Jersey between Passaic and Bergen County, there are
some well to do communities that don’t seem to have the stress on their
development in terms of bringing in the so called affordable housing. What
they’re doing in most cases is the regional contribution to it and sending it
out of their community. Member Graceffo added, his point is where does that in
a sense show and demonstrate fair housing from a state view when a community
who has maybe developers who have a deeper
pocketbook because of their return, can say alright we’ll put more money
out and take our shares and put them someplace else. Atty. Kantowitz said he
thinks last month there was a bill introduced to the legislature to eliminate
the concept of RCA’S so called selling half of the requirement out.
Atty. Kantowitz summed up by saying, towns such as
Wanaque that are limited in land that are impacted by various physical
constraints, now the “Highlands” legislation are placed in a difficult posture.
MOTION TO APPROVE THE HOUSING ELEMENT AND FAIR SHARE
PLAN RESERVING THE RIGHT AND THE OPPORTUNITY TO REVISIT THE ISSUES AND
MECHANISMS SET FORTH IN THE PLAN AFTER THE MOST RECENT RULILNGS ARE SENT TO US:
made by Member Graceffo, seconded by Member Verba, voting yes were Chairman
Foulon, Members Di Meglio, Mayor Mahler, Graceffo, Platt, Slater, Verba and
O’Connell. Members Rucci and Shutte voted no.
MOTION TO ADJOURN AT 8:55 P.M.: made by Member Di
Meglio, seconded by Member Graceffo, carried by a voice vote.
____________________________________
Planning Board Secretary