Archive: Confusion over COAH spreads

This article was originally published on Dec. 10, 2015.

The third hearing on a controversial five-story building, now approved for construction in the Glenridge Avenue corridor, sparked some debate regarding the standing of certain aspects of Montclair's Inclusionary Zoning Ordinance (IZO). 

It was 2009 when the Glenridge & North Willow Construction Co., Inc first applied to the municipal Planning Board in its application of the Rose Aire mixed-use development. 

The development has garnered outcry from some residents and board members alike due to fear that a building of such height will taint the look and feel of Glenridge Avenue's quaint one- and two-story aesthetic. 

Last Monday, the developers came to the Planning Board for the third and final time boasting a revamped plan. While some board members were still unsettled by the building's height, the new plan answered enough of the board's previous concerns to win approval -- with member Jason Desalvo voting against it, and Chairman John Wynn and member Martin Schwartz abstaining. 

However, confusion arose after the developer's attorney, David Owen, claimed that a Superior Court ruling in March, which determined the Council On Affordable Housing (COAH) to be "non-functioning," and invalidated the organization's certification on the township's most recent affordable housing plan, also invalidated the township's existing affordable housing ordinances. More specifically, Owen maintained, it disqualified the regulation that requires new developments of five units or more to set aside 20 percent as affordable [see related story on A-1]. 

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"Twice the Appellate Division said these rules can't stand," said Owen, who claimed the Superior Court found the ordinance "'beyond the rule- making authority of COAH,' and affirmed the Appellate Division. What that means is that your inclusionary zoning ordinance has an infirm basis to it, and it really should not be enforced." 

Owen further stated that the issue of affordable housing units to be set aside in new developments "is not the Planning Board's problem." 

As approved, the building features 17 residential units, with two three-bedroom apartments set aside for affordable pricing, but 20 percent of 17 is 3.4, and under stipulations in the IZO, the decimal would be rounded up to a requirement of four affordable units. 

Planning Board member Peg Seip told Owen, "We're not in a position here, I believe, for you to be taking exception to which ordinances you're going to honor." 

Seip's colleague, Martin Schwartz, said he did not want to instigate a larger conversation but inquired of Planning Board Attorney Arthur Neiss as to whether Owen's comments about the validity of the township's affordable housing ordinance were correct. 

Neiss said, "I haven't studied them, but my understanding is that Mr. Owen's analysis is essentially correct." 

The board attorney claimed that COAH was "disbanded by the governor at some point in time, and coincidentally the courts considered the Third Round [a term that describes New Jersey municipalities' affordable housing plans covering the years 1999 to 2015] and found them to be deficient, and rescinded them ... I don't know enough about our ordinance at this point without studying it to know whether or not it was based on the Third Round rules." 

Owen maintained that the IZO makes specific reference to Third Round regulations. 

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Planning Director Janice Talley, who, along with Township Attorney Ira Karasick, has been dealing with the legal proceedings regarding recertification of Montclair's Third Round from the Superior Court, said, "We are required to do a new housing element fair-share plan, and subsequently amend our affordable housing ordinance once we receive direction from the courts." 

For clarification, Schwartz once again asked whether the township's housing ordinance was effectively voided. Seip quickly disabused all present of this notion, saying that was not the case. Neiss told Owen he was still compliant with "that" ordinance. 

Montclair Housing Commission Co-Chair William Scott reached out to The Montclair Times to express his dismay with Neiss' comments. 

"You're an attorney to the Planning Board," Scott said, speaking about Neiss' admission that he was not familiar enough with the status of Montclair's affordable housing ordinance to comment. "That's not an okay statement to make. [He's] heard this conversation about affordable housing for the last year, and for [him] not to have direction for the Planning Board, I thought that was troubling." 

Referring to the Planning Board's discussion as a whole, Scott said, "I don't think there should ever be confusion on that level." 

The Times contacted Karasick for clarification on the Superior Court's effect on the IZO ordinance. Yet, even the township attorney could not provide a definite answer. 

Although, at first, Karasick said that the voiding of Third Round substantive certification "does not mean the ordinances we have in place are invalid," he clarified that no one can "take an absolute position. 

"There may be some issue about whether or not the IZO and the 20 percent are valid. I'm not sure. It hasn't been tested," said Karasick. He added that he "thinks" it is valid, and that the court decision doesn't change anything. 

"The court has thrown some uncertainty over what's valid and what's not," noted Karasick. "And that cloud is not going to go away until there's been more resolution." 

Edwin Schmierer, an attorney hired by Karasick to serve as special council on the Third Round recertification hearings, told The Times that any invalidation of Third Round certification or rules does not, in fact, invalidate municipal housing ordinances.