Affordable Housing On United Water Tract Called "Inherently Beneficial Use"

A professional planner told New Milford zoning officials Tuesday night that affordable housing on the 13-acre United Water parcel is an

At a Feb. 14 hearing on the New Milford Redevelopment Association application seeking , attorneys for the NMRA said that development of the residential units has an "inherently beneficial use" with regard to the town's obligation to provide low-income housing.

The crux of David Kinsey's testimony Tuesday was "inherently beneficial use" and the borough's need to comply with its affordable housing obligation. 

NMRA is arguing that the low income housing included in the development plan falls under "inherently beneficial" use and, therefore, they should be granted the variance to proceed with the development.

The application had called for 15 percent, or 33 units, of the 221 residential units be set aside to satisfy New Milford's low housing obligation. However, Kinsey testified that based on growth share that number was increased to 40 units. Kinsey also testified that the borough's master plan placed the fulfillment of its affordable housing obligation on the United Water property.

Since the N.J. Supreme Court landmark decision in Mount Laurel I (1975) that declared municipal land use regulations that prevent affordable housing for the poor unconstitutional, municipalities have a constitutional obligation to provide a realistic opportunity for the construction of low and moderate income housing.

Under Mount Laurel II (1983) developers and public interest groups could use the “builder’s remedy” to ensure compliance by municipalities of meeting its low income housing obligation.

The “builder’s remedy” allows a developer to bring litigation against a municipality to change zoning on a particular site if that developer demonstrates that the municipality is not in compliance with its Mount Laurel obligations and promises to include a set-aside of low  and moderate income housing as part of its development.

In 1985, the N.J. Legislature enacted the Fair Housing Act which created the Council on Affordable Housing (COAH) to assess the statewide need for affordable housing, allocate that need on a municipal "fair share" basis, and review and approve municipal housing plans aimed at implementing the local fair share obligation.

Kinsey explained that COAH has launched a new method of calculating municipal obligations called "growth share." "Growth Share" provides a municipality with a mechanism to predetermine its future affordable housing obligations by careful and deliberate land use planning.

According to Kinsey, every 9412 sq. ft. of mercantile use should trigger requirements for one low income unit in a housing plan. Every 5714 sq. ft. of business use should trigger one low income housing unit.

Kinsey further testified that implementation of the commercial component of the application generates an increased need for affordable housing units. Sproviero informed the expert and the audience that this standard is currently in limbo in the courts. 

In other board business, James Kelly, Executive Vice President & General Counsel for Boswell Engineering, testified in response to Al Alonso’s letter requesting Boswell recuse themselves from the application because they have done work with United Water. 

Kelly testified that Boswell has no professional relationship with United Water and under local ethics law there are no direct or indirect financial or personal conflicts on Boswell's behalf.

Kelly further testified that Boswell's involvement with United Water is on a project by project basis.

Sproviero felt confident that there is no legal conflict with Boswell remaining the borough's engineer on this application. “I am satisfied with their opinion and see no grounds for their recusal," Sproviero said.