HOPEWELL TWP.: Judge rules against giving township affordable housing credits

By Frank Mustac, Special Writer
HOPEWELL TWP. — A setback in the township’s ongoing affordable housing litigation took place, it seems, when a court ruled this month that the municipality is disqualified from getting certain housing credits.
The township had hoped it would get a credit from the court to provide about 150 fewer affordable housing units than the roughly 890 total units it currently says it can make available for low- and medium-income home buyers and renters. However, a judge has decided otherwise.
“The court will enter judgment finding that Hopewell (Township) is not entitled to any reduction or elimination of its affordable housing obligation under NJSA 52:27d-311.3,” Judge Mary C. Jacobson said in Superior Court in Trenton.
The state statute the judge cited in her ruling is the New Jersey Economic Stimulus Act of 2009.
The opinion handed down by Judge Jacobson on Jan. 8 stemmed from another lawsuit filed at the beginning of 2015 by Hopewell Township to recoup $639,633 from the state.
A commercial developer originally placed the money in the township’s affordable housing trust fund back in 2008 as part of a mandated obligation called a non-residential development fee.
Before the stimulus act became law, the developer (Capital Health Systems) was required to deposit the $600,000-plus fee in the trust fund after building a hospital in the township.
The trust fund is used by the township to make affordable housing available in the municipality, however, as stipulated in the economic stimulus act, the township had to refund the entire sum back to the developer, which the township did.
Since the state never paid back that money to the township’s affordable housing trust fund, as promised, Judge Jacobson ruled last August that “the township met the prerequisites for the ‘alternative relief’ of affordable housing credit towards its COAH obligation,” according to then-Mayor Harvey Lester.
COAH is an acronym for the Council on Affordable Housing, a state agency.
The issue of affordable housing credits was folded into another township affordable housing lawsuit, called a declaratory judgment case, currently pending also before Judge Jacobson. It was during this declaratory judgment case, which is still ongoing, that the judge made her determination on Jan. 8 that Hopewell Township is not eligible for these particular affordable housing credits.
“I understand Hopewell’s dilemma and their dismay at being caught this way, but I just don’t see the statute at this point in time entitles them to the credits that they are seeking,” Judge Jacobson said on Jan. 8.
Current Hopewell Township Mayor Kevin Kuchinski offered his understanding of judge’s recent ruling.
“On the township’s motion for credits regarding the non-residential development fee case, Judge Jacobson heard oral arguments, and in a shift from her ruling this past August, she held that the township was not entitled to any credits because the language in the stimulus act was based on the growth share methodology that was subsequently invalidated by the Supreme Court,” Mayor Kuchinski wrote in an email.
“We are obviously disappointed by the court’s recent decision on affordable housing credits, but at the same time, I have been increasingly concerned as to how much money we are spending in legal fees on what appears to be a fruitless path forward,” the mayor said. “Looking ahead, Hopewell Township must continue to vigorously defend itself in the pending affordable housing case, and work to reduce the outrageous number of affordable units some entities wish us to build. As we do this, we will work to spend taxpayers’ money more frugally and reduce unnecessary legal expenses, particularly those that have little potential for a reasonable return.”
An audio recording (available at https://youtu.be/Gu9100yo2Yw ) of the court discussion of Hopewell Township’s affordable housing credits contains the judge’s summation at about time marker 1:09:38. 