PRINCETON: AvalonBay loses appeal on affordable housing dispute

By Philip Sean Curran, Staff Writer
AvalonBay must price 56 rental units at its Witherspoon Street development at below market rate for at least 30 years, an appeals court decided Tuesday in upholding a lower court’s ruling and handing Mayor Liz Lempert a victory to protect tenants.
A three-judge panel waded into the latest dispute between the town and AvalonBay, this time concerning how long that affordable housing restriction had to remain in place. Tuesday’s decision means the town will have the ultimate say in how long those units stay at below market rate, although it was not known if AvalonBay intended to appeal to the state Supreme Court.
Mayor Lempert said Wednesday that she was "gratified" by the decision.
"Everybody wants their home to be a stable place," she said. "And I think it’s important that most all of Princeton’s affordable housing is affordable in perpetuity. And that means that people don’t have to worry about getting evicted after some artificial thirty-year-period."
AvalonBay Vice President Jon Vogel could not be reached for comment.
The issue centered around a municipal ordinance and the developer’s agreement Princeton and AvalonBay had reached in April 2014, both of which conflicted with state regulations.
The agreement said, in part, that the 56 units would be affordable "for 30 years", in line what the ordinance called for. For her part, Mayor Lempert said she did not know how that language, about the time duration, got into the agreement.
"I’m not sure what really happened there, because it wasn’t on previous versions of that document, as to my understanding," she said. "I’m not sure how that got in there."
But a lower court found, and the appeals court agreed, that the ordinance and the agreement were pre-empted by state regulations, known as Uniform Housing Affordability Controls or UHAC.
Those regulations say affordability controls are in effect for a "minimum" of 30 years and can be lifted only if a governing body adopts an ordinance after that time is up. In effect, the UHAC regulations trumped the ordinance and the developer’s agreement, the lower court and then the appeals court concluded.
Princeton had relied on those regulations when in a dispute with AvalonBay about a deed restriction on the property. The town wanted language in the document saying the 56 units would be affordable for "at least 30 years."
AvalonBay, concerned for its financial bottom line, wanted the document to say the restriction would be in place for 30 years, and did not want to give the town a blank check to keep the units affordable forever. The company signed, under protest, the deed restriction because it would not get building permits unless the issue was settled, the appeals court opinion said.
AvalonBay sued the town, the planning board and Mayor Lempert and the Council in Mercer County Superior Court, and appealed the lower court’s ruling that went the town’s way in December 2015.
In a 17-page-decision, the appeals court judges said they were "satisfied that it was reasonable and appropriate for defendants to require compliance with the UHAC regulations in the deed restriction."
Later, the judges wrote the "developer’s agreement cannot override UHAC."