TOMS RIVER – The legal protection that has allowed Toms River to control where affordable housing is built and potentially avoid thousands of additional apartments through builder’s remedy lawsuits, could disappear within a month.
Superior Court Judge Sean D. Gertner warned during a July 31 hearing that unless township officials, developers and the Fair Share Housing Center resolve a growing list of disputes before September 1, the court may strip Toms River of the immunity that has shielded it while negotiating its fourth-round affordable housing obligation.
“I’ll lay it right out,” Gertner said during what had been expected to be a routine case management conference. “The opportunities to work in the manner in which the program envisioned are quickly dissipating.”
Rather than conducting the fairness hearing originally envisioned for September 1, Gertner said the proceeding may instead “turn into a hearing over whether or not the immunity should be removed from Toms River.”
The warning represented a dramatic shift in tone. Earlier hearings had focused on finding a path toward a negotiated settlement. On July 31, Gertner made clear the court was now evaluating whether the parties had made enough progress to justify keeping the township’s immunity in place.
His warning followed a contentious July 29 Township Council meeting where council members tabled key ordinances and resolutions needed to implement revisions to the township’s affordable housing settlement. As the hearing unfolded, it became clear the dispute extends far beyond the political battle between Mayor Daniel Rodrick and the council.
Attorneys representing Fair Share Housing Center, multiple developers and the township each described unresolved issues that Judge Gertner concluded must be addressed before the case can move forward.
What’s At Stake
For residents, the stakes extend far beyond another political disagreement. Toms River’s temporary immunity protects the township from additional builder’s remedy lawsuits while it works to satisfy New Jersey’s constitutional affordable housing obligations. Without that protection, developers can ask a court to approve residential projects with greater density than local zoning ordinarily allows if they include affordable housing, shifting much of the township’s control over future development to the courts.
That threat is more than theoretical. Meridia Toms River 40 Urban Renewal LLC, the developer behind the proposed downtown waterfront redevelopment, already has a pending builder’s remedy lawsuit against the township. Separately, it is also alleging Toms River breached its redevelopment agreement by improperly declaring the company in default and attempting to terminate the project. The developer contends its proposal, which includes an affordable housing component, should remain part of the township’s overall compliance strategy.
Judge Gertner stressed he was not revoking Toms River’s immunity on July 31. Instead, he made clear September 1 represents a critical deadline. Christopher D. Zingaro, who represents Toms River in the affordable housing litigation, told the court negotiations would continue before the August 12 township council meeting and, if necessary, through additional special meetings. Gertner endorsed that approach but warned the process could not continue as it had.
“Enough is enough,” the judge said, making clear he expects meaningful progress, not continued political stalemate, before the parties return to court.
A Settlement Still In Flux
Although public attention has focused on replacement affordable housing sites proposed by the township, the hearing revealed several separate disputes that all must be resolved before a fairness hearing can take place.
Joshua D. Bauers, representing Fair Share Housing Center, told Gertner he received one newly proposed affordable housing site a day and a half before the July 29 council meeting. That left little time to determine whether the property could satisfy the township’s constitutional obligations.
Bauers also said Fair Share was surprised to learn the JD Jamestown redevelopment had suddenly become uncertain because, until the council meeting, no one had indicated the project itself was in jeopardy.
“I think there are some misconceptions as to what this project is,” Kenneth A. Porro, attorney for JD Jamestown, told the judge, proposing that the developer present directly to the mayor and the full Township Council before any vote.
Meridia raised a different concern. Attorney Steven Mlenak told the judge his client had been left out of negotiations despite having two active lawsuits against the township and a proposed inclusionary redevelopment project that could contribute affordable housing credits. Unlike the township’s newly proposed 100 percent affordable housing developments, an inclusionary project combines market-rate housing with affordable units, allowing a municipality to satisfy part of its affordable housing obligation while creating a mixed-income community.
Mlenak told the court Meridia had not received draft ordinances, revised settlement agreements or recommendations from the court-appointed special adjudicator, leaving the developer unable to evaluate how the township’s revised strategy affected its interests. Mlenak argued Meridia had been excluded from negotiations “for one sole purpose … that’s to keep Meridia out.”
Zingaro responded that the township was not treating Meridia as a replacement for one of its newly proposed 100 percent affordable housing projects.
“The Meridia project is an inclusionary project,” Zingaro said. “I don’t want there to be any perception… that it’s a swap for one of the township’s 100 percent projects. It’s not.”
Zingaro added that Meridia had approximately two months to present a proposal and said the township remained prepared to communicate any proposal as negotiations continued. Mlenak maintained that Meridia’s interests still needed to be addressed before a comprehensive settlement could move forward.
Enough Is Enough
Although the attorneys disagreed over documents, negotiations and the role of various development proposals, throughout the hearing, Gertner repeatedly returned to what he viewed as the central problem.
“Everyone’s got to be at the table at the same time,” he said, urging “open and honest communication” among township officials, developers and Fair Share Housing Center.
He warned that negotiations must continue throughout August and that, by September 1, the court expects more than promises.
“Enough is enough here, one way or the other,” Gertner said. “If it doesn’t happen, we’ll make decisions starting September the first.”
