Judge OK’s West Cape May’s Housing Plan, Disapproves Sixth Ave Project

ATLANTIC CITY – Superior Court Judge William E. Nugent approved West Cape May’s Housing Element and Fair Share Plan to provide affordable housing Friday Oct. 9, ending the quest of developers Sixth Street Partners to build 70 townhouses on 5.8 acre property on Sixth Avenue.
Nugent said he believed West Cape May’s Housing Element and Fair Share Housing Plan was compliant with state Council on Affordable Housing (COAH) regulations and offered a realistic opportunity for the development of low and moderate incoming housing in the borough.
Nugent had listened to witnesses for both the West Cape May and Sixth Street Partners at a compliance hearing on Sept 4. He said the borough would rehabilitate 11 units and sought credit for eight units rehabilitated from 2000 to 2004.
The judge said there was a question if the eight units that were rehabilitated were up to code standards. The borough requested the units be assessed to see if they can be brought up to code standards.
Nugent said West Cape May would be given 60 days to assess the eight units. The borough also sought one affordable housing credit for a unit in Westwood Mobile Home Park undertaken in the 1980’s under its COAH prior round obligations.
A large part of the borough’s remedy for earlier unfilled housing obligations is a seven unit building to be constructed for those with special needs called Cape Manor. A court-appointed special master requested floor plans to make sure the construction is barrier free.
Nugent said the most controversial portion of West Cape May’s affordable housing plans was the growth share component which uses accessory apartments. He questioned if an apartment would attract a low to moderate income family. The special master said if the program was properly implemented, it could attract a family.
Nugent said he would monitor the progress of the West Cape May’s affordable housing plans at six month intervals due to the borough’s long history of not being complaint with the Mount Laurel decisions that created affordable housing requirements for municipalities. He said he expected construction of Cape Manor would be well underway within six months.
The borough will be required to pass an ordinance within 45 days to set developer fees to benefit affordable housing.
He said the borough has agreed that the first two accessory apartments would be a three bedroom unit for a very low income family and two bedroom unit for a low income family which should be implemented as soon as possible.
Accessory apartments must remain so for 15 years. Residents for the units will be chosen by a lottery, said Nugent.
The borough has one year to show significant progress and if the court determines programs are being delayed, it can revisit the case. Nugent ordered the borough to continue to report the availability of land for an affordable housing project if within two years the affordable housing plan is not working.
The project would be for a minimum of seven units, he said. Nugent said he was sensitive to the fact that Sixth Street Partner’s lawsuit was the stimulus for the borough finally focusing on its affordable housing obligations
West Cape May has a state designated town center status which influenced the judge’s decision. Nugent said he looked at the goals of keeping new development inside the town center rather than outside, such as Sixth Avenue, where development would be a burden on the environment and infrastructure.
He noted the Sixth Avenue parcel would have required an extension of a sewer main.
Nugent said it was hard to reconcile the amount of time it took to bring the case to its conclusion. The case began in 2007.
In January, Nugent had denied Sixth Street Partner¹s request for a builder¹s remedy lawsuit against theborough. The judge ruled the site unsuitable for 70 units after inspected the property in Nov. 2008
West Cape May has contended the Sixth Avenue property is zoned R-5 and is outside the sewer service area, which requires 35,000 square foot lots, which would allow only seven units to be constructed under current zoning.
Sixth Street Partners had accused the borough’s planning board of denying their application despite the
fact it did not require any variances or waivers. They also accused the borough of passing an ordinance that changed zoning on the Sixth Avenue property in between two zoning board meetings where the
developer¹s application was presented.