Affordable Housing Advocates Challenge Board Approval of 'Area 5' East Plan

A group that advocates for affordable housing filed a complaint challenging the Fort Lee Planning Board’s for the eastern half of Redevelopment Area 5 on the 45th day of the 45-day appeal period, borough officials said.

But Fort Lee’s borough attorney and other officials also say they believe the complaint is “without merit” and are hopeful it won’t delay groundbreaking on the project.

At Thursday’s Mayor and Council meeting, Fort Lee Councilman and Planning Board member Armand Pohan said the board “accomplished a major step” over the past few months by approving FLRA’s plan for the East parcel and for the western half “of the vacant property known as Redevelopment Area 5.”

But Pohan also called board approval “one of many hurdles that a developer has to go through before it sticks a shovel in the ground.”

“As the resident realist, I need to remind the public that there are still other hurdles that have to be accomplished before that project starts,” Pohan said. “For example, there is a public interest group that has filed a complaint challenging the Planning Board’s approval of the East parcel because the Planning Board allegedly didn’t properly take into account the COAH obligations—the Council on Affordable Housing obligations—that are imposed upon the borough, although nobody knows right now what they are.”

The group Pohan referred to, the Cherry Hill-based Fair Share Housing Center, contends in a complaint filed in Superior Court on May 29, the very end of the appeal period, which begins after memorialization and publication of Planning Board approval, that despite issuing approvals for “a substantial amount of housing,” Fort Lee did not provide “a realistic opportunity for affordable housing” because the borough “has not required a specific number of affordable units on the site.”

The Fair Share Housing Center based its complaint on the “Mount Laurel Doctrine,” which it says on its website “prohibits economic discrimination against the poor by the state and municipalities in the exercise of their land use powers.”

“We think that the lawsuit is without merit, but until it is disposed, it is one of the hurdles that yet remains to the starting of the East parcel,” Pohan said. “We’re hoping that that will be disposed of fairly quickly.”

Pohan described the group’s attempt to thwart the project as “typical of the development process these days in the United States, which is a very litigious society.”

“People exercise their rights, and there are public interest groups that make their living by exercising those rights to litigate,” Pohan said. “We hope and are confident that there will be a favorable outcome.”

In the borough’s brief in support of its motion to dismiss the Fair Share Housing Center’s complaint, the borough calls the action “a broad-based attack,” and says Fair Share Housing “does not contend” that the borough made no provision for affordable housing, but rather that the proposed housing “does not meet [the Fair Share Housing Center’s] interpretation of regulatory criteria.”

The borough further contends in its brief that the complaint should be dismissed because “the Fair Housing Act requires that such challenges must be considered by [COAH].”

Borough attorney Lee Cohen said the Fair Share Housing Center files objections to “virtually every development plan that’s [approved],” and not just in Fort Lee, although they have done so “repeatedly” in the past, “as they have in every other town of any substantial size.”

“This is what they do,” Cohen said. “That’s not to say Fort Lee was their particular target. Any town of any size, they file as well. That’s their mission in life.”

Cohen said the COAH rules and requirements are currently in state of flux “as a result of a series of conflicting court decisions.”

“We’re waiting for the Supreme Court to give us their decision so we don’t know what to tell [the developers],” Cohen explained. “We don’t know whether to tell them you’ve got to give us X dollars or Y units; we don’t know the answer. Nobody knows the answer.”

But he also said that the borough is requiring both developers to guarantee that they will build or pay for whatever COAH obligations result from their respective projects.

“We’ve asked no more of them than they’re obligated but no less,” Cohen said. “The obligation arises after the construction. But the obligation really arises after the Supreme Court and/or the Legislature clarify what the obligation is.”

After Planning Board approval, the next step is memorialization and publication of the approval. Then the 45-day appeal period kicks in. The Planning Board is expected to memorialize Tucker’s approval at its meeting on Monday.

Pohan said any legal action has the potential to hold the process up, but Cohen said he’s “cautiously optimistic” that the current complaint won’t.

“In due course, we’ll get a ruling from the court,” he said.