Finally – It’s Final. Council Gives American Properties the Go Ahead to Go Ahead

This article is an update of a story that first ran on November 10, 2014.

The Highland Park Borough Council at its Nov. 12 council meeting voted to accept the terms of the settlement agreement of the American Properties  “builder’s remedy lawsuit” by unanimously adopting the zoning ordinance that will allow the project to move forward.

It has been a long and contentious process over a period of five years that has produced an outcome that no one thinks is ideal, but will result in the development of an undesirable industrial site for residential use which  officials think ultimately will enhance the community.

“I for one would have loved to see a lot more COAH included in that property,” said Councilwoman Elsie Foster-Dublin. “However, this [litigation] has gone on for five years, and the cost of the litigation keeps on growing.”

“I’d like to point out that ‘affordable’ doesn’t mean that undesirable elements will be coming into town,” said Councilman Philip George. “‘Affordable’ means that our children will be able to stay here.”

“It’s unfortunate that the good idea of towns making room for affordable housing uses the sledgehammer of builders lawsuits to make it happen,” said Council President Padraic Millet.

Cleveland Avenue resident Larry Perfetti reiterated the concerns he has expressed at several council and planning board meetings about the density and the  negative impacts to the neighborhood and the community at large.

The conversation will continue when American Properties goes before the Highland Park Planning Board with a preliminary and final site plan proposal. No date for such submission has been set yet.

The below story (which ran originally in the Nov. 10 Highland Park Planet) reporting on the Nov. 3 Planning Board meeting summarizes the issues  and the controversy.

At a special Nov. 3 meeting, the Highland Park Planning Board members by a vote of six to one formally indicated their support for the American Properties Builder’s Remedy settlement agreement. The Board passed a resolution recommending a change in the zoning ordinance necessary to allow the American Properties development on Cleveland Avenue to proceed. At its Nov. 12 meeting the Highland Park Borough Council members will vote on the proposed zoning ordinance. Planning Board member Heather Wilkerson was the lone vote against the zoning ordinance, because, in her opinion, the zoning would allow too much impervious surface on the site which contributes to water pollution and flooding.

The basic elements of the zoning changes on the 7.5 acres tract of land, now zoned for industrial use, would be to permit residential development at a density of 14.5 units per acre within a Planned Unit Residential Development. The zoning would permit up to 104 market rate units and six affordable units, if all of the housing is initially offered for sale; or up to 95 market units and two-to-five affordable units if some or all of the housing is initially offered for rent.

In any case, the agreement stipulates that there shall be a five percent set aside for affordable housing. The affordable housing units shall be compatible in appearance with the market housing units and interspersed within the market units. The permitted percentage of impervious surface would be 70 percent. Ms. Wilkerson objected to that percentage, because other residential developments are allowed only 50 percent impervious; the neighboring Pulte development “The Crossings” got a concession to 55 percent impervious. She urged American properties to work at lowering the amount of pavement on the site, in order to control storm water runoff and ensure adequate drainage.

The American Properties Cleveland Avenue development proposal – and the currently under construction Pulte development known as ”The Crossings” – are the products of developer “builder’s remedy” lawsuits brought against the municipality for its failure to comply in a timely manner with the State of New Jersey affordable housing mandates.  If a municipality is not in compliance with New Jersey State law regarding the provision of affordable housing, a developer has the right to sue and build a development that is not in compliance with the local zoning (particularly the density) , as long as the development includes a significant amount of affordable housing.

The State mandate generally requires that a “builder’s remedy” development makes at least 15 percent of the units available at prices affordable to low and moderate income people. Complicating the settlement agreement is the fact that after the suits were filed, it was determined that the town actually met New Jersey’s mandates for the provision of affordable units, but simply failed to file its plan in a timely manner. The town has been working for the past five years to come up with a settlement that has a reasonable density and to prevent a scenario in which the developer in court could have won the right to build several hundred units by constructing 15 to 20 percent affordable housing units as part of the project.

If the borough insists on 15 percent affordable the developer can then propose a development that is large enough, potentially several hundred units, that the developer can pay for the affordable units and still make a profit. By agreeing to an affordable percentage of only five percent affordable units the Borough can avoid the risk that the builder will go to court and prevail resulting in a denser and larger development to cover the cost of additional affordable units.

About a half dozen residents in the neighborhood of the proposed American Properties Cleveland Avenue development attended the Nov. 3 meeting. They voiced their concerns about the impact that the additional 100 new residences would have on the town’s infrastructure – particularly in the context of the neighboring Pulte Crossings project (82 Townhomes; 12 single family homes) now under construction.

Resident Larry Perfetti gave a coherent and thorough summary of the neighborhood’s objections to the development and reflected comments that have been expressed at various borough council and planning board meetings over the past year.  After acknowledging that the residents in the area actually “welcome” the residential development on the site which now is abandoned industrial property, he went on to say the following:

“We believe that the borough has a responsibility to negotiate a settlement with American Properties that is in concert with the realities of our neighborhood and of the borough…the fact that ours is a residential neighborhood with an average of eight units per acre, that has limited ingress and egress, that substantial development already is taking place on the new Pulte property and that American Properties proposed development will cost the taxpayers of the borough more money.”

He asked for: affordable owner occupied units, not affordable rental units; replacement of trees, as per HP statutes; clean up of the “polluted lands” to acceptable New Jersey Department of Environmental Protection and United States Environmental Protection Agancy standards; and borough oversight of the development as it proceeds. And he raised the oft-repeated issue of the financial burdens of increased numbers of school children that would result from such development.

Planning Board member Steve Nolan took particular issue with the negatives-of-increased-school-children argument and a somewhat testy exchange took place between Mr. Perfetti and Mr. Nolan. Families with children comprise a vibrant community with residents who are vested in the town’s future, said Mr. Nolan.

But it is these arguments about the schools, roads, and storm water, that make it so important for the town to be proactive and plan for appropriate development, rather than be reactive, said Ms. Wilkerson. “We have to get ahead of the development, control our future,” she said.

If Council members approve the zoning, American Properties would proceed to the site plan submission at some time in the near future.

Comments are closed.