Affordable Housing

Affordable Housing Update from Mayor Potter
October 14, 2022

Dear Residents,

As many of you are aware, a Settlement Agreement has been entered into between the Township of Randolph, Fair Share Housing Center (“FSHC”), and the court order approving same, which was entered by the court on June 3, 2022 after a properly noticed fairness hearing.

The Housing Element and Fair Share Housing Plan addresses the plan to meet Randolph’s fair share housing obligation within this Settlement Agreement. The Fair Share Plan is part of the Township of Randolph’s request to acquire a Judgement of Compliance and Repose (“JOR”) from the court in the Declaratory Judgement Action in the Matter of the Application of the Township of Randolph for Declaratory Judgment, Docket No. MRS-L-1640-15 which was filed in Morris County on July 2, 2015, and includes the projects and strategies to address Randolph’s affordable housing obligations. View a copy of this plan .

This plan is a detailed look into Randolph’s court ordered obligation to provide housing. In an effort to make it easier to follow this plan, as it tracks through our boards and committees, the Randolph Township Division of Planning & Zoning Administration, within the Office of the Randolph Township Manager, has created a map that summarizes the proposed affordable housing projects and lists the status of these plans. View the map .

It is my intention to have additional information posted whenever there is a status change to any of these projects. Please keep in mind that board and committee meetings are always open to the public, during which these applications are reviewed.

Because of this communication objective, I would like to bring to the community’s attention that #15 on this overview map “Heller/JMF/Liberty Village” has a status change from “Application Pending” to “Planning Board Hearing 10/24/22.” This application will therefore appear before the planning board on October 24, 2022.

On September 29, 2022 the township appeared at a compliance hearing held before the Honorable Stephan C. Hansbury in order to acquire a JOR. The summary of this appearance is as follows:

1. Directed the township to furnish to the Special Master and FSHC additional documentation as set forth in the September 27, 2022 Special Master’s Report (“Report”) related to the credit worthiness of the various affordable housing credits sought by the township in the Settlement Agreement within 30 days of the hearing;
2. Directed that the township meet with Avalon Bay (Route 10, Block 44, Lot 13) and with Ten Development Partners (“TDP”) (Route 10 Block 44, Lots 8 and 9) to attempt to address the concerns raised by each of the developers with regard to Zoning Ordinance No. 27-22 (R-8 Zone) and resolve those issues within 90 days of the date of the compliance hearing;
3. Denied and rejected for the fourth time the objections raised by Randolph Mountain Partnership in connection with their zoning ordinance adopted more than 14 years ago;
4. Directed the township to provide to the Special Master and FSHC additional documentation as requested in her report within 90 days of the hearing;
5. Reserved water for all of the affordable housing projects not yet built and lifted the Scarce Resource Order allowing non-affordable housing projects to proceed utilizing the remaining available water and any future water that becomes available;
6. Continued the township’s immunity from builder’s remedy lawsuits until further order of the court; and
7. Established a continued compliance hearing for January 5, 2023 at 10:00 a.m.

If you have any further questions, you can reach our planning & zoning division at (973) 989-7080 or at .(JavaScript must be enabled to view this e-mail address).

We will post additional informational updates as we receive it.

Regards,
Marie Potter
Mayor, Randolph Township

This statement has been prepared to provide an accurate overview on the on-going affordable housing issues being addressed by the township council.

Since the 1980s, the Township of Randolph has been an active participant in the creation of affordable housing in the community. More than 300 affordable units have been developed in a variety of forms. These include apartments, townhomes, single-family dwellings, assisted-living units and group homes. The township met its requirements as overseen by the Council on Affordable Housing (COAH).

In 2015, the New Jersey Supreme Court ruled the State’s administrative process for reviewing affordable housing requirements was no longer working. The Court transferred matters from COAH to the New Jersey Superior Court. The ruling also established a judicial setting as a substitute for COAH’s review of a municipality’s affordable housing obligation.

Under the Supreme Court ruling, local governments were provided the opportunity to seek approval of their affordable housing plans through a court filing termed a declaratory judgment action. Randolph filed its action on July 2, 2015, and later filed a related housing plan approved by the planning board in March 2016, as required by the court.

The township’s professionals, with input from the township council, spent the better part of five years negotiating in court. Those negotiations included the Fair Share Housing Center and developers/property owners who filed motions to take part in the case (interveners). Besides determining the number of units required, the discussions also focused on the proposed locations being available, approvable, developable, and suitable.

Under the court mandate, the township could not say “no” to the development. The township could not reject proposals based upon concerns over impacts on the school system and/ or public infrastructure such as roads. The settlement approved by the township (and later, the court) contains the lowest density requirements that could be mutually agreeable under the applicable regulations and guidelines. The settlement also identifies locations that the court agreed to allow for development. Without a settlement, the township would be unprotected from ‘builder’s remedy’ lawsuits—opening Randolph up to uncontrolled development without restriction by local zoning regulations. Randolph would lose control of its own destiny.

The township reached a settlement agreement with Fair Share Housing Center on August 19, 2021, which was later amended and approved at a properly noticed hearing and memorialized by Court Order dated June 3, 2022. At the Fairness Hearing the court evaluated if the proposed settlement was fair and reasonable to the region’s low- and moderate-income households.

Much of what the township council considered as part of the settlement is consistent with the draft plan presented to the public in June 2019. The draft plan was also made available on the township website. Under the terms of the settlement agreement, the township has a cumulative 643 unit (affordable) third round obligation for the period concluding in 2025. The settlement agreement permits the township to apply credit for projects already completed and not accounted for in prior obligation rounds as well as for bonus credits for which the township is eligible. The number of total new affordable units which the settlement provides for under the plan is 258.

The preliminary settlement agreement reached in August 2021 included the proposed development of 300 apartments on the Skylands site on Route 10. This development would have produced 60 affordable housing units and 60 bonus credits as a rental project. The original developer had backed out of the project at that time and the agreement stipulated that the property owner would be required to market the property for only inclusionary housing and to agree to stop all future nonresidential use of the property within 30 days. The owner of the Skylands property was unwilling to make this commitment and several replacement sites in Mt. Freedom and Route 10 were added to replace the affordable units lost by the elimination of the Skylands site, which substitution was later approved by the Court.

The settlement features a combination of approaches for providing the units to be developed including increased density provisions for existing zones and inclusionary zoning. Inclusionary zoning means rezoning property(s) to provide for an inclusionary set-aside (customarily 15%-20% of the total number of units in housing development) for affordable units. For example, if the set-aside was designated at 15% on a 100-unit development, 15 of the units would need to be set-aside as affordable units with the remaining 85 being market units.

While the rezoning ordinances (introduced on September 1, 2022) will allow the township council to meet the terms of the settlement agreement, any property owner or developer seeking to build must submit development plans for site plan approval to the Planning Board. There is a detailed and extensive checklist of materials that comprise a “complete” application for site plan approval which then starts the development review process by the Planning Board. During the process of site plan review, the Planning Board hears testimony and makes recommendations designed to ensure the layout of the site functions properly. These recommendations may include the need for an environmental impact statement and traffic analysis. Also, the State of New Jersey has adopted Residential Site Improvement Standards establishing requirements for streets and parking, water supply, sanitary sewers and stormwater management.

Randolph has met all its obligations in the legal process and continues to work for the best possible outcome for the community. Documents related to the settlement agreement and the Housing Element and Fair Share Plan are available for review below.

Frequently Asked Questions

Q. Is Randolph required to participate in the process?

A. No. But the failure to participate and comply with the directive of the courts will result in Randolph’s temporary immunity issued by the court being revoked, which will subject the township to Builder’s Remedy lawsuits (further explained below).

Q. Who is Randolph’s Adversary in Court?

A. There are five “interveners” in the Randolph court action. These interveners are property owners or contract purchasers who have presented plans to the court on how they can assist Randolph meet its affordable housing obligation. At the present time, the township is working collaboratively with two of these five interveners to assist in meeting our ultimate affordable housing obligation. In addition, Fair Share Housing Center (FSHC), a 501(c)3 organization out of Cherry Hill, New Jersey was designated by the Supreme Court as an “interested party” in all Declaratory Judgment Actions that were filed in the Superior Court of New Jersey in all 21 counties of the state. According to their website, FSHC is “the only public interest organization entirely devoted to defending the housing rights of New Jersey’s poor through enforcement of the Mount Laurel Doctrine, the landmark decision that prohibits economic discrimination through exclusionary zoning and requires all towns to provide their “fair share” of their region’s need for affordable housing.”

Q: What is Randolph’s obligation for affordable housing and its plan for fulfillment?

A: Only obligations for the First and Second Rounds of Council on Affordable Housing (COAH) regulations (1987-1999) are actually established. Randolph was assigned an obligation of 261 affordable units for this time period. The township has satisfied the entirety of this obligation and has credit for an additional 208 units for projects that have already been completed or have approval. The Settlement Agreement establishes a 643-unit cumulative Third Round (1999-2025) obligation for Randolph based upon the fair share methodology calculated by the Richard Reading report dated July 17, 2018 which was prepared for Morris County at the direction of the Honorable Maryann L. Nergaard, JSC by Court Order of June 20, 2017. These obligations were based upon the application of the principles elucidated in the Mercer County Opinion decided upon by the Honorable Judge Mary C. Jacobson in her opinion dated March 8, 2018 for the determination of each of the categories of affordable housing need for the municipalities located in Mercer County.

Q: What is a Builder’s Remedy lawsuit and how does it function?

A: A builder’s remedy is a court-imposed judgment in favor of a litigant in which the court requires a municipality to rezone the developer’s property to allow for high density development provided that a substantial portion of the units to be constructed are reserved for, or set-aside for, low- and moderate-income households. The additional market units that are allowed through the higher density development are intended to create an additional profit to the developer who will use some of those profits to subsidize the low- and moderate-income units that the developer must now construct as part of its development and either sell or rent the units at below market amounts. A developer is entitled to a builder’s remedy if (1) it succeeds in proving that the municipality has not satisfied its constitutional affordable housing obligation (Mount Laurel obligation); (2) it proposes a project with a substantial amount of affordable housing, and (3) the site is suitable, i.e., the municipality fails to meet its burden of proving that the site is environmentally constrained or construction of the project would represent bad planning.

Toll Bros. v. Twp. Of West Windsor, 334 NJ Super. 109 (App.Div.2000) established the principle that a successful developer in a builder’s remedy suit is entitled to a court ordered zoning designation, including all aspects of zoning such as density, setbacks, building heights, lot coverage, green area, etc. Municipalities in builder’s remedy lawsuits may be held liable for developers’ attorney’s fees and costs of suit, the fees of a special master appointed by the court to assist in developing the zoning scheme on the affected property, the costs of any infrastructure improvements, such as sewer and water system upgrades and road improvements. When a builder’s remedy is granted against a municipality, the town and its planning and zoning boards lose all control over the zoning of the subject property, which is left to the special master, who only reports to the court or just to the courts.

Q: How does a municipality succeed in a builder’s remedy lawsuit?

A: A municipality can win a builder’s remedy lawsuit by proving that it has satisfied its Mount Laurel obligation voluntarily by adopting zoning that provides a realistic opportunity for the construction of the municipality’s fair share of the region’s affordable housing needs. Randolph is part of a four county region comprised of Morris, Union, Essex and Warren counties. Barring that defense, it is not an overstatement to say that over the course of judicial history since the builder’s remedy was created by the New Jersey Supreme Court in 1983 (Mount Laurel II), it is nearly impossible to find a New Jersey municipality that prevailed in a builder’s remedy lawsuit. When a builder’s remedy is granted, the municipality is left paying its own attorney’s and other professionals’ fees, the fees of the court appointed Special Master, as well as in many cases, the attorney’s fees of the developer and all infrastructure improvements such as sewer and water system upgrades and road improvements, required by the court-imposed development plan. The municipality also loses virtually all zoning and development regulation control, including density, height, setbacks, landscaping.

Q. Why can’t the township object to allowing new housing to be built based upon the impact such housing will have on our local school system and on traffic congestion?

A. The State of New Jersey and courts do not consider nor do they allow municipal consideration of these factors when calculating affordable housing obligation. Infrastructure such as water and sewer capacity can be considered by the court; however, the obligation remains and is only deferred to a future round.

Q: How do we protect the township from a Builder Remedy Lawsuit?

A: The only way any community can be protected from a Builder Remedy Lawsuit is to submit a Housing Element and Fair Share Plan that complies with the required obligations and receives a Judgment of Compliance/Repose from the court. This replaces the previously granted Substantive Certification, which was granted by COAH. So long as the township is complying with its Housing Element and Fair Share Plan, the township will be “immune” from Builder Remedy.

Documents Related to Specific Projects

LYS Realty/Toll Brothers - Block 44, Lot 4 (931 Route 10)
Settlement Agreement (8,793 KB) 
Ordinance (197 KB) 
Omnibus Ordinance (68 KB) 
Concept Plan (4,739 KB) 
Elevations and Floor Plans (7,898 KB) 

Canoe Brook Development LLC - Block 44, Lot 25 (134 Dover Chester Road)
Settlement Agreement (1,585 KB) 
Ordinance (247 KB) 
Omnibus Ordinance (68 KB) 
Concept Plan (469 KB) 

Affordable Housing Frequently Asked Questions (79 KB) 

Draft Housing Plan July 1, 2019—Part 1 (2,905 KB) 
Draft Housing Plan July 1, 2019—Part 2 (3,030 KB) 
Draft Housing Plan July 1, 2019—Part 3 (4,330 KB) 

Court Special Master Report of May 31, 2019 (315 KB) 

Draft Housing Plan April 10, 2019—Part 1 (4,546 KB) 
Draft Housing Plan April 10, 2019—Part 2 (1,287 KB) 

Draft Housing Plan March 14, 2016 (711 KB)