Wayne's Loss of Immunity in Affordable Housing Means Wayne's Loss of Control - TAPinto.net

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WAYNE, NJ – This week, Wayne lost its builder’s remedy immunity when Judge Thomas Brogan declared in Passaic County Superior Court that Wayne Township had procrastinated too long in facing its constitutional obligation to provide low- and moderate-income housing, according to NJ.com. This decision by the judge means a loss of control at one proposed development in Wayne, and possibly more.

Click here for a history and explanation of the New Jersey Supreme Court decision that required every town in NJ to provide affordable housing. We are in the third round of affordable housing obligations that began in the 1980s. Wayne fulfilled its first two, and over the course of this third round, which began in 1996 and ends in 2025, enforcement of the affordable housing mandate was taken away from the Council on Affordable Housing (COAH) and put into the hands of the courts. Municipalities across the state finally learned what their obligation would be around 2015. 

For this round, Wayne’s obligation was determined to be 2,271 units.  There were two options for fulfilling this obligation. Both were spelled out in a TAPinto article found here. Wayne could pay for and build the 2,271 units themselves or have private developers build them at a five-to-one ratio.  Five units built with one of them designated as ‘affordable.”  This second method would mean over 11,000 units would need to be built in Wayne to reach the obligation.

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Mayor Chris Vergano, during two public information sessions and also during several town council meetings, told the public that he was pursuing a strategy to reduce this number, using a vacant land adjustment that would reduce Wayne's obligation based on the amount of vacant land that was available in Wayne for development.

According to Vergano, by negotiation via the courts, Wayne Township has been successful in lowering the density (units per acre) of developments proposed in Wayne. The Township has settled cases that will lead to the new developments at the GAF property off Alps Road and the Rockledge, Waynebridge and Preakness Shopping Center developments on Hamburg Turnpike. Each of these properties will be built with a density in line with what Wayne currently has in most of its developments around town. 

Currently, being negotiated are developments at the Toys R Us property and the Valley National Bank property on Valley Road Extension. It is the suit brought on by developer Avalon Bay at this last property that has led to the loss of Wayne’s immunity.

During the September Wayne Town Council meeting, Vergano told the public that when all of these properties settle, “based on the vacant land adjustment,” he would “anticipate compliance” with Wayne’s obligation. It sounded like this round would be settled, the properties would be built, and Wayne could move onto round four starting in 2026.

Judge Brogan’s decision effectively put an end to that, and the future is now unknown.

What could this mean for Wayne?

The Town of Dumont published a Q and A about Affordable Housing online. This is what they wrote about the builder’s remedy:

“A successful developer in a builder's remedy suit can be 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.

Q: How does a municipality win a builder's remedy lawsuit?  A: Over the course of history, it is nearly impossible to find a New Jersey municipality that prevailed in a builder's remedy lawsuit. Like being in quicksand, the more you fight, the deeper you sink. When a builder's remedy is granted, the municipality is left paying the attorneys on both sides of the lawsuit, the court appointed Special Master, as well as all infrastructure improvements such as sewer and water system upgrades and road improvements, required by the court-imposed development plan. The municipality also loses all control of site plan, including density, height, setbacks, landscaping. These decisions are made by an outside party who could live in Hunterdon or Middlesex or Ocean County and has little or no regard for Dumont.”

According to this, Wayne has likely lost control over just about every aspect of what will be built at the Avalon Bay/Valley National Bank property and possibly other future proposed developments.

As of this writing, Vergano has not yet replied to requests for more information from TAPinto Wayne. The next Wayne Town Council meeting is scheduled for this week, Wednesday, November 18. There is likely going to be a lot of questions and comments from the public then.  TApinto will be there.

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