West Cape Mayor Speaks Out On Sixth Street Plan

WEST CAPE MAY — Mayor Pamela Kaithern has responded to statements made by Sixth Street Partners, a development group that is suing the borough for its lack of a certified affordable housing plan required by the state Council on Affordable Housing (COAH) and is accusing the developers of trying to build more units than is allowed in the zone to make a greater profit.
The case, a builder’s remedy lawsuit, is headed for Superior Court in Atlantic City, Dec. 3.
Sixth Street Partners applied to the borough’s planning board in 2004 to build 18 single-family homes on a 5.8-acre parcel on Sixth Avenue.
In an Oct. 31 Herald story, Anthony Anzelone, a principle in Sixth Street Partners, said the application was denied by the planning board despite the fact it did not require any variances or waivers.
He also accused the borough of passing an ordinance that changed zoning on the Sixth Avenue property in between two zoning board meetings where the developer’s application was presented.
The change created an R-5 zone, which required 35,000-square-foot lots for properties that use septic tanks. Before the ordinance change, only 7,500-square-foot lots were required although 35,000 is specified by the state for unsewered areas.
Sixth Street Partners returned with a plan for a 70-unit townhouse development with 20 percent of the units as affordable housing.
Anzelone said West Cape May was not interested in providing affordable living units as the state has mandated.
Nicholas Menas, attorney for Sixth Street Partners, said after the filing of the lawsuit, the borough put together a plan “that at best was disingenuous,” because itdoesn’t provide for the construction of any new residential housing in West Cape May.
Kaithern issued a statement Nov. 2 in response to Sixth Street Partner’s comments in the Herald story.
“Although it is full of inaccuracies, it is inappropriate to litigate this matter in the press while it is in a court of law,” she said.
Kaithern provided the Herald with a 110-page legal brief supporting the borough’s motion for a summary judgment.
“The brief includes a number of accurate factual statements and presents a compelling legal argument,” she said.
“If you review this document, you will see for yourself how disingenuous the plaintiff is. Mr. Anzelone and Sixth Street Partners have brought this action and now seek to invoke public sympathy, not so that it can advance affordable housing, but rather, to make as much money as it can in the name of the poor and working middle class,” said the mayor’s statement.
“I somehow doubt that this is what the Supreme Court had in mind when it set forth standards for builder’s remedy relief and set forth limitations on the builder’s remedy,” said Kaithern.
West Cape May’s motion for summary judgment prepared by Attorney Jeffrey R. Surenian, states the borough began a process to be compliant with COAH in 2003. In 2006, the borough adopted a new master plan that contained a “comprehensive analysis of the borough’s housing status,” designed to serve as the basis for a COAH application.
In 2005, planner Kendra Lelie was hired by the borough to assist in the preparation of a housing element and fair share plan, which was adopted by borough commission in June 2006. While the borough believed it would receive 60 credits for existing units from COAH, it was determined the borough would receive only one.
Commission adopted a plan to provide 23 affordable units on Sept. 25, according to the brief.
The borough believed it would receive credit for seven affordable housing units through home rehabilitations funded by state grants.
It also investigated sending money to Woodbine to satisfy part of West Cape May’s COAH obligation. It would send seven contributions at a cost of $35,000 each to build units in Woodbine.
The borough also introduced an ordinance creating 10 accessory garage apartments to satisfy affordable housing requirements giving property owners a $20,000 subsidy to create the apartments.
The brief notes the partners requested a “conformity determination” from the state Department of Environmental Protection for the construction of eight houses on the Sixth Avenue property because a state map incorrectly listed their property as located outside the sewer service area.
According to the brief, the partners did not return to the planning board or withdraw their application for eight units but instead launched a builder’s remedy lawsuit against the borough on Aug. 24, 2005.
The borough contends the R-5 zone in which the property is located is for farms or single- family homes. In addition, the borough said the land could only accommodate seven units.
The brief shows the townhouses would cover 46 percent of the lot while the borough permits only 15 percent and only 3 percent under CAFRA regulations.
The borough hired Jeff Donohoe to look at the profitability of building single-family homes on the property in comparison to townhouses. He calculated building six, single-family homes would generate a profit of $721,000 while constructing 56 town homes with 14 COAH affordable units would produce a profit of $14 million for the developers. The brief states the developers could set aside 24 affordable units and generate a profit of over $8 million. If the partners built 30 units with 20 percent as affordable units, it would generate a profit of $5 million, said Donohoe.
The borough’s motion for summary judgment asks the builder’s remedy suit be dismissed because the developers “have an obligation to act in good faith and attempt relief without litigation.”
“Since the plaintiff failed to attempt to obtain relief without litigation, its complaint must be dismissed as a false start,” said the motion.
It notes Sixth Street Partners filed two applications to the planning board, neither of which included affordable housing.
The motion also calls for the suit to be dismissed because the partners attempted to use the Mount Laurel decision, requiring towns to provide affordable housing, as a “bargaining chip” with its efforts to secure the right to develop the land at increased density with no affordable housing.
It accuses the partners of failing to proceed in a manner contemplated by the Supreme Court requiring developers to “develop a fair and sensitive plan before it files suit and triggers a process that puts the public to great expense.”
The motion notes the partners are “seeking a remedy entitling it to seven times the density contemplated by the application pending at the point when the developer filed suit,” without explaining how such an “over-the-top proposal could be reasonably achieved.”
The borough is asking the suit to be dismissed because the partners failed to prove they would provide more than the 20 percent minimum for affordable housing. A Supreme Court decision calls for a “substantial” number of affordable units and proof the developer would provide the housing if the trial judge awarded the remedy.
Contact Fichter at (609) 886-8600 Ext 30 or at: jfichter@cmcherald.com