‘Jersey City is not above the law’

Litigation over Jersey City's inclusionary zoning ordinance continues

Fair Share Housing Center Inc. continues to push for Jersey City’s controversial inclusionary zoning ordinance to be overturned, filing two motions on June 25 seeking summary judgment and sanctions as well as attorney fees and costs.

The nonprofit, dedicated to defending the housing rights of New Jersey’s poor and ensuring municipalities provide affordable housing, claims that the ordinance is “deeply flawed” and would provide “lucrative giveaways to politically connected developers without meaningfully addressing the city’s growing housing affordability crisis.”

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FSHC filed a lawsuit against the city and Jersey City Council in Hudson County Superior Court last December seeking to have the ordinance declared void.

It asserts that the ordinance violates state law by allowing developers to buy their way out of affordable housing requirements and that the council violated state law by adopting the ordinance before it was reviewed by the city’s Planning Board.

As originally adopted in October, the ordinance at the center of the litigation requires residential developments to set aside 20 percent of all units as affordable housing for 30 years.

The mandatory affordable housing units would be set aside for households with combined income brackets at 30 percent, 50 percent, and 80 percent of the annual median income (AMI), as defined by Uniform Housing Affordability Controls (U.H.A.C.).

Developers with projects of more than 15 residential units who request five or more additional units or an additional 5,000 square feet of residential floor area through a redevelopment plan amendment or a variance would be required to follow the above provisions.

But, the ordinance also offers several loopholes to allow developers to avoid providing affordable housing.

It allows the council to reduce a developer’s affordable housing obligation below the 20 percent mandate, allows developers to provide community givebacks by constructing buildings like public parking garages as well as police and fire stations instead of affordable housing, allows for offsite affordable housing, and allows the council to entirely waive the ordinance’s provisions.

It also allows buyout provisions in which the developer could pay the city between $25,000 and $100,000 per mandated affordable housing unit instead of building the unit with funds going to the city’s affordable housing trust fund.

Under the ordinance, even with the loopholes, a minimum of 5 percent of the affordable housing units would still be mandatory and must be provided by the developer onsite regardless of offsite housing, payments in lieu, and community contributions.

Litigation ongoing

“Under the guise of encouraging the production of affordable housing to address the City’s mounting housing affordability crisis, the ordinance enacts an unlawful scheme that sanctions blatant quid pro quos and grants absolute discretion to the City’s officials to engage in freewheeling negotiations to trade away much-needed affordable housing, including for a limitless range of ill-defined ‘community benefits’ that constitute illegal exactions prohibited by statute, case law, and public policy,” states FSHC in it’s latest court filings.

In its 39-page brief for summary Judgement, FSHC further states that “Jersey City is not above the law” adding that the law should be invalidated as it was adopted by violating municipal land use law.

In the second motion for sanctions and to award FSHC attorney’s fees and costs, FSHC also seeks to strike the city’s answer to FSHC’s complaint as FSHC asserts it was a noncompliant answer.

“In its answer, the city denied 92 of the 93 paragraphs in the complaint, including basic facts that are supported by the City’s own documents attached as exhibits to the complaint,” states FSHC in its motion for sanctions.

As of June 25, Jersey City had not replied to FSHC’s March 12 sanctions letter or filed an amended answer.

Hudson County Superior Court Judge Joseph Turula is scheduled to hear the motions on July 23.

For updates on this and other stories check www.hudsonreporter.com and follow us on Twitter @hudson_reporter. Marilyn Baer can be reached at Marilynb@hudsonreporter.com.


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