*Please note: This is a living document. We will add to it as other questions arise and updates are made to various projects.
You may have heard (and seen while driving around town) that there are a series of new developments coming to town. These developments all include mandated Affordable Housing units to keep the Township in compliance with the Settlement Agreement the Township entered into with Fair Share Housing Center (FSHC), which was approved by the state Court when it granted the Township a final Judgment of Compliance and Repose (or "JOR"). The JOR protects the Township from Mount Laurel lawsuits, including builder’s remedy lawsuits, until July of 2025. The most common questions we hear are:
What development is coming to town?
Why is this happening?
When will these developments be built?
What’s the difference between “Affordable Housing” and “Low-Income Housing”?
Read on for some straight information from the Township about proposed, approved and under-construction developments in Berkeley Heights.
What Developments are Proposed, Approved or Under Construction in Town?
The Court-approved Settlement Agreement between Berkeley Heights and FSHC, and the Township’s adopted Housing Element and Fair Share Plan ("Fair Share Plan"), which was approved by the Court after a Compliance hearing via the entry of the JOR, includes these proposed, approved and under-construction developments (full details on website here):
Berkeley Crossing - “Berkeley Florist” - 663 & 665 Springfield Ave & 88 River Road (PILOT)
45 Rental Units (8 AH), 4,300 sq ft Retail Space
Status: Planning Board approved.
The Terrace at Berkeley Heights “Movie Theater” - 450 Springfield Ave (PILOT)
20 Rental Units (3 AH), 4,000 sq ft Retail Space
Status: Under construction
Stratton House “Kings/ NY Mart” - 434 Springfield Ave (PILOT)
Former Hotel Property “open lot next to Delicious Heights , Near old Kings/NY Mart”
Millcreek “Spatz” - 91 Lone Pine Drive (PILOT)
Woodcrest at Berkeley Heights “Locust Ave near old community pool” - 100 Locust Ave (PILOT)
196 age-restricted (55 and older) Rental Units (29 AH)
Developer installing the traffic light at the Snyder/Locust/Hamilton Ave intersection
Status: Under-construction (Dec 2019)
Toll Brothers Luxury Townhomes “Hamilton Ave/Little Flower” - 110 Roosevelt Ave
67 Carriage Homes and Condos (20 AH)
Status: Planning Board Hearing (Feb 2020)
Rough anticipated start date (July 2020)
Elite Properties Project “Vito Mondelli’s”- 182 Plainfield Ave (PILOT)
Connell - Connell Drive
Why Did the Township Approve These Developments?
After the New Jersey Supreme Court decided Mount Lauren IV in March of 2015 - which took power away from the Council on Affordable Housing ("COAH") and turned that power over to the trial courts, the Township filed a required Declaratory Judgment Action to ensure that it maintained immunity from all Mount Laurel lawsuits, including builder’s remedy lawsuits. If the Township had not settled, it would have been forced by the Court to build even more affordable units than what was eventually agreed to in the Settlement Agreement with FSHC.
All of the new developments are a direct result of the Township implementing its Settlement Agreement with FSHC and the JOR entered by the state Court in the Fall of 2017. the JOR approved the Township’s Fair Share plan, which outlines our strategic plan for providing its Court-required amount of affordable housing. This plan agreed to provide a minimum number of affordable units mixed in with market-rate units over a certain number of years. During the process, the Court was very complimentary of the Township, and considered Berkeley Heights to be a role model for other towns to follow.
The JOR gives the Township immunity, or blanket protection, from all Mount Laurel lawsuits, including builders remedy lawsuits. In 1983, the New Jersey Supreme Court issued its Mount Laurel II decision, which created the builders remedy; this remedy allows a builder to sue a town that is deemed non-compliant with its affordable housing obligations. The end result of such a lawsuit, is that a Court could take away zoning power from a town and force it to permit excessively high-density developments in order to meet its affordable housing obligations. The purpose of this would be to stop a town from shutting our lower-income residents through exclusionary zoning.
Click here for a historical recap of affordable housing litigation and the resulting actions taken by the township.
Increased Affordable Housing Coming to Berkeley Heights (and every town in NJ)
New Jersey is one of the highest cost of living states in the nation. The concept of “affordable housing” was developed to enable low-to-medium income families to afford to live in communities, where they work and where market price housing would typically be out of reach.
Technically, the State of New Jersey defines “affordable housing” as housing units that are not sold or rented at market price but instead are only made available to residents with income levels lower than what the State defines as able to reasonably afford market price housing units. Affordable housing units are incorporated into larger housing complexes. Under current law, there is supposed to be no noticeable exterior difference between a market-value unit and an affordable one.
Is “Affordable Housing” the Same as “Low-Income Housing”?
No. The State breaks down affordable housing into three income ranges: Very low, Low and Moderate. The State also breaks down the income limits by region. Berkeley Heights Township is located in Region 2, which includes Essex, Morris, Union and Warren counties. The State recently released income limits for 2019, which was adopted as part of a Court Order that was entered for Berkeley Heights on May 7, 2019. The order will automatically allow the income limits to increase in each subsequent year moving forward. The 2019 income limits for Region 2 are as follows, for one- and four-person households.
2009 Median Income in Essex County: $87,600
1 Person - Annual Income
Family of 4 - Annual Income
“Very Low” (30%)
What Does “State-Mandated” Mean? Do Other Towns Have State-Mandated Affordable Housing?
Since 1975, when the Supreme Court issued its Mount Laurel I decision, all New Jersey communities have been required to produce a plan to enable affordable units to be built. Some communities didn’t comply with the Supreme Court’s decision, so that Court issued a second decision, Mt. Laurel II, in 1983, which created the builder’s remedy as an enforcement mechanism. Mount Laurel II was written to ensure communities complied with their affordable housing requirements.
In short, yes, all NJ towns are required to comply with their Constitutional obligation to provide affordable housing, not just Berkeley Heights.
Berkeley Heights & the Affordable Housing Settlement
In order to globally settle the Declaratory Judgment action filed in July of 2015 in response to the Supreme Court’s Mount Laurel IV decision, Berkeley Heights negotiated, and entered into a Settlement Agreement with Fair Share Housing Center in September of 2016. In litigation mode, Fair Share Housing Center contended that the Township’s Gap (1999-2015) + Prospective Need (2015-2025) - or Round 3 affordable housing obligation - was 839 total units. Through the settlement, the number of units for Round 3 was reduced down to 389. In order to meet the Round 3 obligation of 389 units, the Township was able to include affordable units that were already constructed and occupied, which reduced the total amount of new affordable units required. The Township was also able to claim a certain amount of “bonus” credits, which reduced the number of required new affordable units down even further.
At this point in time, the projects in the settlement are in various stages of development - -proposed, approved, or under construction. The Township has to ensure that these projects move forward, as it is required to submit a report to the Court in July of this year to update the Court on the implementation of the settlement. Each of these development includes a percentage of market rate units (usually 85%) and a percent of affordable units (usually 15%). esidents should keep in mind that just because housing is approved, it doesn’t mean that the developer will build it. The Township’s responsibility is only to provide a “realistic opportunity for the production of affordable housing”, which means that it only has to provide the zoning for the developments to be built.
These developments are being built by private developers; they are not being built by the Township of Berkeley Heights. Each development includes an affordable housing component to keep Berkeley Heights in compliance with its Court-approved settlement. However, the Township has been working - and will continue to do so - with each developer to ensure our residents receive some benefit from each project. For example, the developer of Vito Mondelli’s property will be creating a passive park for public use, while the developer of the King’s property will be providing some commuter and public parking spaces.
The Township website has an updated map and summary of the status of Planned and Proposed Developments in Berkeley Heights. This summary includes information about the Affordable Housing included in each development.
How to Apply for Affordable Housing in New Jersey
For information on how to apply for Affordable Housing in New Jersey, visit the website of CGP&H, the New Jersey Department of Community Affairs approved Affordable Housing Administrative Agent (www.affordablehomesnewjersey.com). Click here for more information on our website.
What are PILOTs and What Do They Have to Do With These Developments?
Under a PILOT agreement, a redevelopment project is exempt from paying traditional real estate taxes on the project, once completed. Instead, the owner of the redevelopment project is required to make a Payment-In-Lieu-Of-Taxes (PILOT). This allows a municipality to ensure that it is receiving sufficient tax revenue necessary to pay for the increased cost of municipal services (fire, police, roads, etc) that may result from the project. The municipality receives 95% of every PILOT dollar paid under a PILOT agreement. By contrast, in Berkeley Heights, the Township only receives approximately 18% of each conventional tax dollar paid. It is important to note that the PILOT only begins upon completion of construction. Prior to that point, the redeveloper is paying full conventional taxes on the property and improvements.
What is a “Redevelopment Project”
Redevelopment is defined as: “A process to rebuild or restore an area in a measurable state of decline, disinvestment, or abandonment. Redevelopment may be publicly or privately initiated, but it is commonly recognized as the process governed by the Local Redevelopment and Housing Law (LRHL) and undertaken in accordance with a redevelopment plan adopted by a municipality. If used correctly, it can transform an underutilized or distressed area into an economically viable and productive part of the community.”