West Cape May’s affordable housing plan gets OK from judge

Developer will appeal decision

Oct, 21-2009 5:15 pm

By CLAIRE LOWE
Staff Writer

WEST CAPE MAY—The borough’s affordable housing plan was approved by Judge William E. Nugent in Atlantic City Superior Court on Friday, Oct. 9 after more than four years of litigation that began with a builder’s remedy lawsuit filed in August 2005.
Sixth Street Partners sued West Cape May on Aug. 26, 2005 citing that the borough was not compliant with the Mount Laurel Decision, the basis behind the state’s Council on Affordable Housing (COAH). Sixth Street Partners contended that they were entitled to file a builder’s remedy lawsuit for their proposed 70-unit housing complex on a site on Sixth Street in West Cape May that was approximately 7.5 acres.
“The zoning there would have allowed, if they had followed the existing zoning, it would have allowed somewhere between seven and 11 units,” West Cape May solicitor Frank Corrado said.
The borough hired attorney Jeffrey Surerian to represent it in this matter. Surerian said that the initial decision on the builder’s remedy suit was announced on Jan. 6, 2009. The judge decided that Sixth Street Partner’s proposed complex was out of character with the town.
Mayor Pam Kaithern said the judge “likened it to a 100-acre farm in the middle of Manhattan.”
Attorney Kevin Thornton, of Cooper Levenson in Atlantic City, who represents the Sixth Street Partners, said that they definitely have the intention of filing an appeal to Nugent’s decision. Thornton said that he is still unsure of the angle the plaintiffs will take in the appeal.
“We’ll have to examine all the options and possible issues that could be raised on the appeal,” he said.
Thornton said that he is disappointed in the outcome of the case.
“We’re disappointed on behalf of the plaintiffs. We’re also disappointed because the housing element and fair share housing plan presented by West Cape May is not going to result in the construction of a single unit of low or moderate income family housing,” Thornton said.
West Cape May’s affordable housing plan, which was deemed as compliant by a special court master appointed by Nugent and by Nugent himself, includes a rehabilitation component, housing for people with disabilities and accessory apartments.
“To maintain community and to still provide affordable housing, that is our goal, and we’ve been working on that since somewhere in the early 2000s,” Kaithern said.
Kaithern said that currently, the borough will attempt to verify eight properties that have been rehabbed for credit. She said the maximum rehabilitation units the borough can get credit for is 11. The borough’s total obligation at this point, Kaithern said, is 23.
Thornton says that the borough’s plan, although compliant with the regulations of COAH, is designed to specifically exclude families.
“The special needs housing that they proposed…are one-room units. By definitions they’re not for families. Rehab housing isn’t going to provide any new affordable housing for anybody,” Thornton said. “They get a ‘credit,’ but the point of Mt. Laurel is to allow low or moderate income families to live where they want to live.”
Kaithern’s position is that the borough is implementing a plan that is the best for West Cape May.
“The borough does have a plan that will work for our community. We not only have it from the master in two written reports…but she also testified in the courtroom that our plan was compliant. So, what fits for West Cape May, may not fit somewhere else,” she said.
The disabilities housing is a seven-unit house specially designed for autistic being built by the borough in conjunction with Community Investment Strategies Inc. and Collaborative Support Programs. The location for the housing is on Fifth Avenue between State and Oak streets. The lot is 100 feet by 50 feet.
“It’ll look like a single family home, fits right in the neighborhood,” Kaithern said.
“That house will provide seven credits and two bonus credits.”
The third component of the borough’s affordable housing plan is accessory apartments, which the borough has decided to implement in the town center. Kaithern said that after the rehabilitation housing and the autistic adult housing, the borough will only have to satisfy two more credits. COAH allows a municipality to do up to 10 accessory units, Kaithern explained.
“The first two would need to be one three-bedroom for a very low (income family) and one two-bedroom for a moderate income family,” Kaithern said, adding “Sometimes people get the connotation that you’re creating Section 8 housing and your not.”
She said the borough choose accessory apartments because the housing stock in the borough lends itself to it.
Thornton said this type of housing will never come to fruition in West Cape May. He said that during the court hearing, the special court master gave a low success rate for accessory apartments.
“Initially, she said accessory apartments have a 3 percent success rate. We called an expert witness that said, frankly, it might be an 11 percent success rate, at most,” Thornton said.
As part of his final decision Nugent imposed certain conditions of on West Cape May to ensure the affordable housing plan is implemented.
“What the judge is doing is he’s saying he wants to see continued progress,” Kaithern said. “He’s asked for six month reports.”
He also asked that the borough amend some ordinances. Kaithern said that the borough will make sure all of the borough’s ordinances are congruent with what the judge wants them to say.
“We’re very pleased that the judge did come to, the same conclusion that the court master did, and that we did,” Kaithern said.
“I’m glad to be at a point where we can start implementing,” she said.
Kaithern said the borough’s affordable housing plan will not be put on hold if Sixth Street Partners appeal.
Thornton said that once the judge’s final decision is published, Sixth Street Partners will have a better idea of what they will appeal.
“Let’s see how the final decision comes out and an appeal develops. We’re confident that on appeal the plaintiffs are going to prevail,” he said.

Claire Lowe can be e-mailed at claire.lowe@catamaranmedia.com or you can comment on this story by calling 624-8900, ext. 243.