Parsippany attorney: Law supports affordable housing

PARSIPPANY – The 120 units of affordable housing one developer has applied to build at Waterview Plaza may be just the tip of a residential iceberg as the township and other New Jersey municipalities cope with the fallout of a recent state Supreme Court decision placing municipal fair-share obligation decisions into the hands of the lower courts.

The new units proposed for a Professional Office District at Waterview Plaza — where the same developer's plans to build a Whole Foods-anchored retail plaza were rebuffed by the township council in 2013 and 2014 — may also count towards a potential responsibility to build up to 1,000 units of affordable housing in Parsippany in the future, according to Township Attorney John Inglesino.

A builder's remedy lawsuit also could result in construction of up to 3,000 additional market-rate units in the township, according to at least one estimate.

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"(The RD Realty application is) all affordable-housing units, and there's a reason why they did it that way," Inglesino said at a council meeting on Tuesday. "They're pursuing it outside the context of affordable housing as we've been discussing it over our Mount Laurel obligations. What they are saying is that affordable housing, irrespective of whether you have satisfied your Mount Laurel obligation or not, is inherently beneficial use."

Inglesino cited the 2009 New Jersey Superior Court case of Homes of Hope vs. the Easthampton Twp. Land Use Planning Board, which established that a 100 percent affordable-housing development plan was "inherently beneficial" and therefore must be considered even by a town that had met its Mount Laurel obligations to provide affordable housing.

"The lawyer in that case representing Homes of Hope was Mr. Carl Bisgaier, who happens to be the same attorney who represents RD Realty," Inglesino said.

The matter currently is in the hands of the township Board of Adjustment.

"I'm sure if the application is denied, they're going to run to court, and I'm sure Mr. Bisgaier will make the same arguments in this case that he made in Homes for Hope," Inglesino said.

The RD Realty application was submitted by Bisgaier's law partner, Robert Kasuba. Both attorneys declined comment.

After the meeting, longtime councilman and planning board member Michael dePierro said his warnings about such a scenario fell on deaf ears from the public and on the council.

"From my seat on the planning board, I warned the residents of Intervale and Mountain Lakes that the Whole Foods proposal, the one that we got modified down to something reasonable, a compromise with no Target store and 9 acres of open space, was a good deal," he said. "That was the third application for that property. If you didn't like that one, I guaranteed they would not like the fourth application, which would be high density and low-income. None of them believed me."

DePierro also blamed a council majority, headed by Council President Paul Carifi Jr., for failing to go back and negotiate with the developer.

"Three council members still refused to budge on that, so it is moot," he said. "If they changed their mind now, the only reason RD Realty would have to abandon a more lucrative low-income housing project, and go back to the Whole Foods, if that is still on the table, is that Whole Foods is national and I understand this developer wants to be a developer for Whole Foods. That would be his only incentive to go back to a lower-yielding project. But this council does not seem interested in even trying to move in that direction."

"My position hasn't changed. I'm against any development there, except for what it is zoned for now," Carifi said after the meeting. "I will fight it to the end. I will do what the residents of the town want. Mr. dePierro is obviously not listening to those residents and what they want for that area. Any development there is going to greatly affect the quality of life of residents that live in that area, and adjoining neighborhoods. The traffic will be a nightmare. It's gong to be a strain on our emergency services. In my mind, there's no benefit. I'm not just going to stand here and let a developer dictate what they are going to shove down our throats."

DePierro and Carifi, both Republicans, are running for re-election on separate tickets in the June primary.

"Paul wasn't fighting for the residents, he was pandering to them just to get votes and he is doing it again," said Mayor James Barberio, who also sits on the planning board. "The fact is that Parsippany has two choices with regard to Waterview. One, to settle with the developer with a compromised project, or two, let a judge decide what happens to the property. I favor a compromised project, because we may not like what the judge decides."

Inglesino added that the 120 proposed units would not develop the entire 26.6-acre lot at Waterview, and that published reports have shown plans for up to 660 units there. And the state Supreme Court decision on March 10 could open the door to builder's remedy lawsuits that could make such a high-density development a reality.

New Jersey's last Mount Laurel affordable-housing guidelines expired in 1999 and, after 15 years of litigation, the Supreme Court ordered the Council on Affordable Housing — the state agency in charge of the rules — to pass new, expanded quotas last year. But COAH missed the court's November deadline, leading to its directive on March 10.

"Due to COAH's inaction, we agree that there no longer exists a legitimate basis to block access to the courts," LaVecchia wrote.

The original Mount Laurel case decision also gave judges authority to impose a "builders' remedy" that typically allowed for the construction of four market-rate units for every affordable unit in municipalities found to be practicing exclusionary zoning.

Inglesino said calculations have indicated that Parsippany's affordable-housing obligation is estimated to be "in excess of 1,000 units," and a builder's remedy lawsuit could conceivably result in 4,000 units, including market-rate units.

Staff Writer William Westhoven: 973-428-6627; wwesthoven@GannettNJ.com.