Middle Reports Progress in Affordable Housing Mediation

COURT HOUSE – Middle Township Mayor Timothy Donohue, in an Oct. 20 announcement of progress in the mediation of litigation on an affordable housing plan, said there is “continued progress toward finalizing the township’s affordable housing plan.” 
He added, “Despite the efforts by some to derail our steady progress (through a politically motivated, false narrative), we are on track to reach a fair settlement.”
Donohue did not identify who is seeking to derail the progress.
What is being settled is litigation brought by the Fair Share Housing Center (FSHC), which takes the position that Middle Township has not acted on a 2019 pledge to develop a plan for voluntary compliance with its affordable housing obligations. 
The suit claims Middle should be stripped of its January 2019 declaratory judgment and any immunity from exclusionary zoning lawsuits. The FSHC filed its motion June 1.
Since then, Middle introduced and then tabled a set-aside ordinance that would’ve established a required 20% set aside for affordable housing in all development projects of five or more household units. The municipality Oct. 12 entered into a developer’s agreement for subdivision improvements at Patsy’s Way, with no mention of an affordable housing component.
The Patsy’s Way subdivision was approved by the Planning Board in 2005. There has been no public announcement of whether that subdivision site plan for 14 single-family homes is still operational, or whether the new developer, CJKR LLC, will have to return to the Planning Board with new plans that might include affordable housing provisions.
FSHC Executive Director Adam Gordon, following Middle’s announcement of progress, said, “There is no settlement agreement between the FSHC and Middle Township, and there remain significant open issues.” 
Gordon added, “We urge Middle to step up and propose a realistic plan that ensures that it is providing its fair share of affordable homes for working families in Cape May County.”
Superior Court Judge John C. Porto ordered mediation in July and has extended the time period from September to Nov. 19. The mediation is occurring with the participation of retired Judge Steven P. Perskie, as special master. Porto set a status hearing for Nov. 12.
Middle’s vulnerability to an exclusionary zoning lawsuit is also at risk in the negotiations. The municipality’s immunity, granted, and subsequently extended multiple times, as a result of its 2019 declaratory judgment, expired in November 2020. Porto issued a stay that maintained immunity for the municipality during the mediation talks. That stay expires unless extended again Nov. 19.
The legal action brought in June by the FSHC is also still open, pending the outcome of the mediation talks. Middle’s October release announcing progress states that the municipality’s “immunity from builder’s remedy lawsuits has been preserved throughout these negotiations.” 
It adds, “Builder’s remedy lawsuits can permit developers to construct multi-family housing with affordable housing allocated outside the scope of local zoning regulations.”
It was concern over exposure to such builder’s remedy litigation that sent the municipality to court for a declaratory judgment in January 2019 over potential litigation regarding the Patsy’s Way subdivision.
In Middle’s Oct. 20 announcement, Donohue states, “We appreciate the effort of all parties to continue good-faith negotiations as we work to finalize a plan that meets the township’s realistic future needs for reasonably affordable housing accommodations in our hometown.”
FSHC’s Gordon Oct. 22 said, “There is a growing affordability crisis across New Jersey, and Cape May is no exception. Rapidly escalating rents and home prices are making it very difficult for essential workers to find a safe, decent, affordable place to live. The health of New Jersey depends on every town, including Middle, doing its fair share to help solve this crisis.”
Parallel to these discussions, legislation was introduced in Trenton that would deny a builder’s remedy resolution to an exclusionary zoning lawsuit. 
S3643 and A1650 state that it is the intention of the legislation “to eliminate the use of builder’s remedy as a method of achieving fair share housing.” 
Both bills have only Republican sponsors, which could make enactment difficult.
To contact Vince Conti, email vconti@cmcherald.com.