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1. Where can I learn more about Millburn’s current Affordable Housing situation?

We invite you to view our Affordable Housing Public Forums.

• November 7^th, 2017, where the Township Attorney, Planner, and Attorney for the Planning Board elaborate on Affordable Housing issues: https://www.youtube.com/watch?v=-r0EQ7s6qGU&feature=youtu.be
• At its August 18, 2021 Township Committee meeting, the Township approved the settlement agreement with FSHC. A presentation was made at this meeting, outlining the settlement agreement. https://www.youtube.com/watch?v=mS1SrG7iQAk&t=8127s
• On January 10, 2022 the Township held a Fair Share Housing Settlement Public Information Session. https://www.youtube.com/watch?v=uYpYxvB8Bwo
• March 10, 2022 and April 27, 2022 the Township also hosted general Public Information Sessions on Affordable housing. https://www.youtube.com/watch?v=EsBfFVwj80E & https://www.youtube.com/watch?v=BcF2h8zTsQo
• A Roundtable on overlay zones was conducted on May 5, 2022. https://www.youtube.com/watch?v=9Rb7cWxEOcY

2. What are the ways the Township can obtain compliance and repose from the courts for affordable housing?

At the January 17, 2023 Township Committee meeting, the township affordable housing attorney Jarrid Kantor outlined seven steps for compliance:

• The Township Committee needs to endorse the Housing Element and Fair Share Plan that was previously adopted by the Planning board at the July 20, 2022 meeting;
• Introduce and adopt the Canoe Brook Country Club overlay zoning ordinance;
• Adopt a spending plan: a statutory requirement that details how funds will be used from the affordable housing trust fund;
• Adopt a resolution of the Township’s intent to fund, stating the Township will step in to cover costs of compliance not available through the spending plan;
• Adopt the affordable housing rental and sale operating manual to establish how rental and sales pricing is determined;
• Adopt a redevelopment agreement with for the 11 Main Street site;
• Adopt the rehab operating manual for the rental and sale of affordable units

3. What is the status of the 75 units of 100% affordable housing at the 11 Main Street development (a portion of the DPW facility)?

Per the results of the Case Management Conference held on January 13, 2023, Fair Share Housing was unwilling to renegotiate the terms of the 11 Main Street affordable housing development and stated the Township must move forward as the development is outlined in the August 17, 2021 settlement agreement— with the possibility of court enforcement through the implementation of a monitor.

4. Does Millburn have an Affordable Housing Plan?

Yes. Millburn Township is working toward compliance with the Superior Court in Essex County, with the expectation that the court will grant a Judgment of Compliance and Repose if all parties involved in mediation have agreed to a settlement. https://twp.millburn.nj.us/DocumentCenter/View/9121/

5. Is the Township required to provide an opportunity for Affordable Housing units?

Yes. All New Jersey municipalities are required to plan, zone and provide a “realistic opportunity” through their land use ordinances for the development of affordable housing. Failing to meet these requirements, set forth under the Southern Burlington County NAACP v. Mt. Laurel Twp. (Mount Laurel) decision, can subject the Township to builder’s remedy lawsuits.

6. How many units of affordable housing is the township obligated to provide and by when?

The settlement agreement with Fair Share Housing stipulates the following number of units as a set aside within these market rate developments: https://twp.millburn.nj.us/DocumentCenter/View/9121/

• 11 Main Street; 75 units
• 397 Millburn Avenue; 8 units
• 85 Woodland Road; 12 units
• Woodmont Properties (Block 5302; Lot 4); 39 units
• Annie Sez; 30 units
• The Upton Short Hills; 30 units (fully built)

7. What is Affordable Housing?

Affordable Housing refers to households in which the total costs reflect no more than 50% of the median household income, or no more than 80% of the median gross household income for low and moderate household sizes, respectively. To be eligible for an affordable unit, applicants must earn a limited amount of income and have limited assets to be qualify as either a low or moderate income household. Low or moderate income housing in the State of New Jersey is typically not “subsidized” housing. These figures are determined by region; Millburn’s regional income limits for moderate, low and very low income can be found here.

Rental and sales prices are determined by methodologies, which are approved by court order and are below-market rents or prices. The rent or sale price is based upon a percentage of the designated income limits that can be reasonably allocated to housing costs within a particular household size. Affordable housing units are individually owned or rented and managed by private companies. Regulations establish a specific bedroom mix for the affordable units consisting of 1, 2, and 3-bedroom units.

8. What is the Fair Share Housing Center?

The Fair Share Housing Center (FSHC) is a recognized affordable housing advocacy group that has been heavily involved in monitoring the efforts of NJ municipalities to comply with their affordable housing obligations. They have been granted “interested party” status in virtually all affordable housing litigation. In Millburn’s case, the Township negotiates directly with FSHC to settle our affordable housing obligations and obtain a status of compliance and repose from the courts. https://www.fairsharehousing.org/

9. What is an overlay zone?

An overlay zone expands the zoning in designated underlying areas and permits an additional use in those areas. In the case of an affordable housing overlay zone district, a property owner can continue to use the property as currently zoned or develop the property with multifamily housing, which would include an affordable housing component of 20%.

10. Why are the courts in control of determining Millburn’s affordable housing obligation?

The Council on Affordable Housing (COAH) has failed to establish legally valid rules and numeric obligations for affordable housing since the second round of regulations expired in 1999. There have been numerous court battles between affordable housing advocates, the real estate developers’ lobby, municipalities and COAH itself over how the rules should be formulated and the methodology by which local obligations should be established.

In March of 2015, the Supreme Court, after numerous attempts by COAH to establish legally acceptable rules and the methodology to calculate each municipality’s affordable housing obligation, took back jurisdiction over all affordable housing issues. The Supreme Court returned to the county trial courts the responsibility of determining methodology, affordable housing obligations and compliance with the constitutional obligations to provide this housing through land use ordinances, overlay zones and available inclusionary development opportunities. This order stripped COAH of its administrative powers and forced participating towns into a situation where they must attempt to determine their own obligations. This process is ongoing and will likely continue through trial and appeals courts for years to come.

11. Will a court consider the economic impact to the community, including schools?

No. Courts will not consider the economic impact to a municipality, whether the impact is on schools or other infrastructure, services, traffic, etc. Although the Township of Millburn and the Millburn Board of Education have concerns with respect to the adverse impact development will have on our schools and traffic, the State of New Jersey and trial courts do not allow us to consider these factors when calculating our affordable housing obligation. Infrastructure such as water and sewer capacity can be considered by the court.

12. What is a builder's remedy lawsuit?

A builder’s remedy lawsuit allows a developer to file suit to have a specific piece of property chosen by the builder rezoned to allow for the opportunity to construct housing at higher densities than a municipality would otherwise allow, provided that the developer provides a set aside of affordable units that are designated for low and moderate income. A developer is entitled to a builder’s remedy if 1) it succeeds in Mount Laurel litigation; 2) it proposes a project with a substantial amount of affordable housing, and 3) the site is suitable, i.e. the municipality fails to meet its burden of proving that the site is environmentally constrained or construction of the project would represent bad planning, Southern Burlington County NAACP v. Mt. Laurel Twp., 92 N.J. 158,279-80 (1983).

A successful developer in a builder’s remedy suit is entitled to a court ordered zoning designation, including all aspects of zoning such as density, setbacks, building heights, lot coverage, etc. to accommodate its proposed inclusionary project. Municipalities in builder’s remedy lawsuits may be held liable for the fees of a special master appointed by the court to assist in developing the zoning scheme on the affected property.

13. How can builder’s remedy lawsuits be avoided or defended?

A municipality can be protected from builder's remedy lawsuits by receiving a Judgment of Compliance and Repose, which generally provides a ten-year period during which the Township would be protected from any future builder's remedy lawsuits so long as Millburn complies with the court approved HEFSP and/or settlement agreement. Southern Burlington County NAACP v. Mt. Laurel Twp., 92 N.J. 158, 291-92 (1983). Because housing obligations have been developed for a discrete period (most recently, 1999-2015), the courts are taking the view that there is a uniform ten-year period during which Judgments of Compliance and Repose are effective until July 1, 2025 irrespective of when the Judgement  is obtained.

Once a court determines that a municipality has not satisfied its constitutional obligations concerning the development of affordable housing, it is nearly impossible to "win" a subsequent builder's remedy lawsuit. The municipality loses the presumption of validity of its zoning ordinances and the case proceeds with the underlying premise that the municipality is improperly preventing the development of affordable housing.

As a result, when a builder’s remedy is granted, courts grant the developer the right to construct multi-family housing on its proposed site and relax the municipality’s density, height, bulk and setback standards as necessary to facilitate that development. In addition, that development will contain an affordable housing set-aside, typically between 15% and 20%. These decisions will be made by a judge upon the recommendation of a court-appointed master-not by Township officials.

14. Are the developers obligated to keep the ‘affordable units’ permanent?

Affordable units are required to be deed restricted for at least thirty (30) years. These restrictions can be extended.