What happens when Hoboken doesn’t follow its own city code?
The Hoboken Zoning Board of Adjustments has ignored a portion of the city code that has been in place since 1998, which some say should have resulted in hundreds of units of affordable housing being constructed throughout Hoboken. Others claim the law is no longer valid because of state rulings countering Hoboken’s provisions.
The Hoboken Municipal Code, Article XVII - Affordable Housing, calls for almost all new, residential projects containing more than 10 units to allocate approximately 10 percent of the project for affordable housing. The number increases to 15 percent in projects along the waterfront. As an alternative to on-site affordable housing, developers are to build housing off-site or contribute to a “housing trust fund” which would fund affordable housing, according to Hoboken’s city code. This part of the city law has been, for the most part, ignored, resulting in units of affordable housing never being built, according to former Zoning Board Commissioner Mike Evers.
“Mr. Evers says you can’t just ignore a provision of the law. I can’t disagree with that.” – Dennis Galvin
Evers raised the issue at the Jan. 19 City Council meeting. He served as a Zoning Board commissioner up until the previous council meeting, when he was not re-appointed. He has raised the issue at previous meetings, even when he was a commissioner on the board.
“This is a situation here with every large development that [has gone] up; that would have been a lot of affordable housing built somewhere in the city,” Evers said. “As time passes, you are missing more and more opportunities to have this affordable housing built.”
Law appealed at state level
Sources at City Hall and the Zoning Board have said the law is no longer valid because court rulings overturned many of the provisions set in it, so the board decided to stop enforcing the city law under the advice of their attorneys. However, the city code was never changed. The law continues to be in effect, but remains ignored. Essentially, the Zoning Board has been operating with no clear city guidelines on affordable housing in Hoboken.
One source close to the Zoning Board said the city determined that they should not enforce the ordinance for reasons stemming from the past rulings, but wasn’t sure why the city never changed the law.
The Superior Court of New Jersey’s Appellate Division decided on Jan. 25, 2007 in regards to the third round negotiations of the Council on Affordable Housing (COAH) that “any rule that permits municipalities to compel on-site affordable housing or payments in lieu thereof without any compensating benefits violates the fundamental principle of the Mount Laurel doctrine that ordinances create a realistic opportunity for the construction of the region’s need for affordable housing.”
Dennis Galvin, Hoboken’s Zoning Board attorney, believes the 2007 ruling is just one reason the provision should have been deleted from the city code. Another reason, according to Galvin, is that the code complies with outdated regulations set forth in the second round of state affordable housing regulations, which were only in effect until 1999. The state is currently operating in the third round of COAH regulations, which took effect from 2004-2018.
Even so, various City Council members over the years never amended the municipal code, leaving an allegedly defunct law in place.
According to a City Hall memo that was expected to be distributed to council members before the Wednesday, Feb. 2 meeting from the city’s legal department, “A municipality cannot require affordable housing in a development under the municipal land use without providing reasonable consideration to the developer for the affordable housing concession.”
“Reasonable consideration is some kind of additional amenity to the developer,” Director of Community Development Brandy Forbes said. “If you’re going to require affordable housing you’d have to offer or allow some benefit to the developer.”
Evers believes the 2007 court challenge to the COAH third round rules should not exclude Hoboken from its own law. Evers said that reasonable consideration comes in the form of a variance, because when a developer requests a variance, they’re asking for the city to make an exception to the law, thus the city is providing “an additional amenity.”
However, the board does not feel that a variance is enough of an amenity to force developers to build affordable housing.
“As a result of the state rulings, the board stopped imposing that section of the ordinance,” said Galvin. “The correct procedural thing to do is to delete the law or re-write it.”
Forbes agreed with Galvin, saying that the law was not enforceable or valid anymore, but should have been re-written to conform to state affordable housing guidelines.
“Mr. Evers says you can’t just ignore a provision of the law,” Galvin said. “I can’t disagree with that.”
Affordable housing still was built
Galvin also said that even though the affordable housing ordinance hasn’t been enforced, the Zoning Board has required some units for affordable housing in some new projects, and exceeds a minimum requirement according to COAH laws on how much affordable housing there is in the city of Hoboken.
The reason it exceeds the state requirement is because of all of the older affordable housing in the city. Though a total number was not available by the city, Applied Housing provides 1,076 units of affordable housing, the Hoboken Housing Authority provides 1,353 units, and Church Towers provides 402 units, bringing the total of the major providers of affordable housing in Hoboken to approximately 3,000 units.
Doug Bern served as the Zoning Board attorney until 2010.
“We often did encourage housing that would provide low income and family income units. That was often stressed, and that comes from a commitment in the master plan,” Bern said. “But in terms of a strict enforcement of a COAH type ordinance mandating a percentage of affordable units, it wasn’t done and likely because there was no certainty as to Hoboken’s requirement for affordable housing.”
Bern said during his time as counsel, the state COAH laws were being challenged, and thus the city code was not enforced.
City looking to repeal provision of ordinance
The City Council is the only governing body that can amend the law.
“What are they going to do now; are they going to kill it?” Evers asked last week.
The council may not ultimately kill the intention of the city code, but if a vote is passed on Wednesday, the issue may soon be in a state of limbo.
Under the advice of city attorneys, the City Council will be asked to repeal the 1998 ordinance which requires affordable housing from new developers, and then pass a resolution which states they will re-enforce the law once state guidelines become clear. The repeal will be introduced on Wednesday, Feb. 2.
Recently, Gov. Christopher Christie vetoed legislation put forth by Sen. Raymond Lesniak (D-20th Dist.) which had the intention of reforming affordable housing rules. Christie believes the legislation did not achieve its goal of reforming the process in New Jersey. The state of flux with affordable housing in Trenton leaves Hoboken waiting to see what will happen next, according to Forbes.
Forbes said on Wednesday that a proper enforcement of the city law may not necessarily have resulted in all the units of affordable housing being built, because parts of the ordinance could have been legally challenged.
A call to Morris Fusco, the chairman of the city’s all-volunteer Zoning Board, was not returned in time for this article.
The issue was brought to the attention of COAH by Evers, and later by The Hoboken Reporter. However, a state spokeswoman said Hoboken does not have an agreement with COAH because their affordable housing units exceed the minimum requirements.
If Hoboken were to enforce the city code, developers may have challenged it in courts because the municipal law was not aligned with rulings from higher courts. However, the law was never changed in Hoboken, leaving no city guideline for the Zoning Board to operate from.
“Hoboken is not under COAH’s jurisdiction and has not submitted any information regarding its ordinances to COAH,” said Lisa Ryan, a spokesperson for COAH. “In addition, since Hoboken is not under COAH’s jurisdiction, we would generally not take a position on its ordinance. If a developer takes issue with the ordinance, the proper venue would be the court.”
Now, the City Council will address the issue at the next meeting, and are being asked to repeal the ordinance, meaning that a city law was established, and never followed.
The process leaves Evers wondering how many more laws are also outdated or flat-out ignored in Hoboken.
Ray Smith may be reached at RSmith@hudsonreporter.com