Court tells wealthy NJ town: We'll decide where you'll put affordable housing

A judge is stripping one of New Jersey’s wealthiest communities of its ability to control where and how dozens of affordable housing units will be built, saying local leaders have shirked their responsibility to build a planned development for too long.

Essex County Superior Court Judge Cynthia Santomauro on Tuesday appointed what's known as a special master to decide by June 1 where Millburn must build 75 affordable housing units. Current municipal leaders have resisted building them around the corner from their downtown’s shops, restaurants and fashionable boutiques, despite a previous mayor and the then-members of the township committee agreeing to do so in 2021.

The special master could pick the current site and developer, if they conclude it’s the best option.

Santomauro also revoked Millburn’s immunity against a “builder’s remedy” lawsuit, which could let a developer move ahead with any project that includes up to 75 units of affordable housing, even if it violates the usual local zoning. New Jersey municipalities are protected from such suits if they comply with requirements to build affordable units. Millburn’s own website notes such lawsuits are nearly impossible for townships to win without immunity.

Local leaders in Millburn, where the average home sale price is well over $1 million, said they’re not against building affordable housing but that the downtown site the community’s leaders agreed to in 2021 is a bad match. They cite concerns that the Main Street site could need environmental remediation and argue that so many affordable units shouldn’t be clumped together in one place. Some members of the current township committee were elected after campaigning against the project.

But the nonprofit Fair Share Housing Center — which has been responsible for negotiating affordable housing settlements with communities since the mid-2010s — accuses Millburn of stalling. The group said the affluent township stands out as a community that’s gone to great lengths to avoid building affordable housing, noting it only has 38 affordable homes on the books, out of a target of 1,300.

“I think we're happy," Fair Share Housing Center attorney Josh Bauers said after Tuesday’s hearing. "Ultimately, we were looking for sanctions that would compel Millburn to move forward with affordable housing. I think the judge issued a decision today that made it very clear that the town cannot violate the agreement with impunity."

The center and developer RPM have been arguing together in court that Millburn must move ahead with the Main Street complex. The 2021 agreement also includes three other projects that local officials are not opposing.

The township’s leaders voted to pull out of the Main Street project in February. A day later, Santomauro said she’d considered sanctioning them for violating the township’s prior agreement right away. Tuesday’s hearing was set to hear arguments about whether Millburn should be penalized.

Millburn leaders had asked the court to give them 90 days to come up with alternative sites for the development, but on Monday they withdrew that request, saying they had located several properties around town that could cover the 75 units, plus a few more. Millburn’s attorney Jarrid Kantor said in court on Tuesday that the township had “worked very hard” to comply with the agreement's details by proposing alternative sites.

“What’s at stake here … is actually having housing that can get built quickly [that the] town can get behind,” Kantor said. He added that selecting one of the other sites would get “shovels in the ground quicker” than would the project the township was contesting.

Santomauro appeared unmoved by the alternative proposals, describing the effort as “some sort of illusory promise” that Millburn was “recommitting” to the 2021 agreement. She said Millburn had treated the Main Street project as viable until only recently, citing documents about the project on the municipal website and a long history of public meetings where officials discussed it.

Craig Gianetti, an attorney for RPM, noted the agreement said that if municipal leaders deemed the Main Street site inappropriate for development, they would have until February 2022 to suggest an alternative. But they didn’t do so at the time, Gianetti pointed out.

“The only thing they’ve built is their promise to fight this project,” he said.

Fair Share had asked the judge to fine the municipality or members of the township committee personally, but she declined that request.

“Normally, I would come to your honor and say ‘order them to do it,’" Bauers said in court. "Just ordering them to do it is not working."

Santomauro also ordered Millburn to pay RPM's and Fair Share Housing's attorney's fees for recent motions filed in the dispute over the project, though she did not assign a dollar amount.

She rejected a motion from the township that she recuse herself from the case because she allegedly displayed bias when she'd threatened immediate sanctions. She said there was nothing in case law that said her expressing her “displeasure” with the township demanded that she recuse herself.

Bauers, in court, called the recusal request “frivolous” and “bordering on abusive.”

Millburn's Mayor Annette Romano, its Deputy Mayor Frank Saccomandi and Township Committee member Ben Stoller were in court on Tuesday but left quickly after the proceedings. Kantor, the township's attorney, did not respond to an email and phone call that night.

Gianetti, RPM's attorney, declined to comment after the hearing.

Bauers said he understood why the judge didn’t fine the municipality or members of the township committee personally. He added that Santomauro didn’t seem to think “that was something that was going to lead to compliance the most quickly.”

But he said she made that decision without prejudice, which leaves the door open to potential fines at some point. “Maybe that's something that is on the table for later,” Bauers said.

New Jersey lawmakers recently overhauled the state's mechanism for assigning towns affordable housing obligations, with a new system that includes incentives for building near amenities including supermarkets and transit centers. A new 10-year "round" of affordable housing obligations will begin next year.