Planning Board - Special Planning Board

1 CITY OF UNION CITY HUDSON COUNTY, NEW JERSEY PLANNING BOARD : TRANSCRIPT OF RECORDED SPECIAL MEETING : : PROCEEDINGS ____________ ____________: City Hall 3715 Palisade Avenue Union City, New Jersey Monday, September 18, 2017 Commencing at 6:04 p.m. M E M B E R S P R E S E N T: YDALIA GENAO, Mayor’s Designee ALICIA MOREJON CAROLINA FERNANDEZ RUDY RIVERO FRANKLIN MEDINA ALEJANDRO VELAZQUEZ, Alternate No. 1, (Left at 6:55 p.m.) JOSE GUARENO, Alternate No. 2 JEANNE KOEHLER, Vice Chairperson DIANE CAPIZZI, Chairperson M E M B E R S A B S E N T: BRIAN P. STACK, Mayor CELIN VALDIVIA, Commissioner A L S O P R E S E N T: CARLOS VALLEJO, Secretary to the Board WILFREDO J. ORTIZ, II, ESQ. Attorney for the Board  2 A L S O P R E S E N T: SCARINCI HOLLENBECK BY: PATRICK J. McNAMARA, ESQ., Corporation Counsel DAVID SPATZ, Consultant Community Housing & Planning Associates, Inc. SUSAN S. GRUEL, Planning Consultant  3 I N D E X PAGE CALL TO ORDER 5 SALUTE TO FLAG 5 ROLL CALL 6 Housing Element and Fair Share Plan 8 ADJOURNMENT 75  4 I N D E X Housing Element and Fair Share Plan WITNESS PAGE Susan S. Gruel 10 SWORN PUBLIC Larry Price 28 E X H I B I T S NO. DOCUMENT PAGE A-1 Aerial of Affordable Housing Sites, Dated September 2017 14  5 1 THE SECRETARY: May I have your attention, 2 please? 3 Please take notice that on Monday, 4 September 18, 2017, at six p.m., a Special 5 Meeting is scheduled for the City of Union City 6 Planning Board, to be held in the Municipal 7 Chambers of the City Hall, 3715 Palisade Avenue, 8 Union City, New Jersey. 9 This is a meeting called in compliance with 10 Chapter 231, Public Law 1975, of the Open Public 11 Meeting Act. 12 Notice of this meeting has been provided as 13 follow: 14 Notice of this meeting, setting forth the 15 time, date, and location, to the agenda, to the 16 extent known, was sent to The Jersey Journal, The 17 Record, and The Hudson Reporter, has been posted 18 on the bulletin board in City Hall, and has been 19 made available to the public in the Office of the 20 Municipal Clerk. 21 Before we call roll for tonight’s meeting, 22 can we just rise to salute the flag, please? 23 24 (Whereupon, the Pledge of Allegiance was 25 said by all.)  6 1 2 THE SECRETARY: Thank you. 3 4 ROLL CALL: 5 6 THE SECRETARY: Roll call for tonight’s 7 meeting. 8 Mayor Brian P. Stack? Absent. 9 Ydalia Genao? 10 MS. GENAO: Yes. 11 THE SECRETARY: Commissioner Celin 12 Valdivia? Absent. 13 Alicia Morejon? 14 MS. MOREJON: Yes. 15 THE SECRETARY: Diane Capizzi? 16 CHAIRPERSON CAPIZZI: Here. 17 THE SECRETARY: Carolina Fernandez? 18 MS. FERNANDEZ: Here. 19 THE SECRETARY: Rudy Rivero? 20 MR. RIVERO: Here. 21 THE SECRETARY: Franklin Medina? 22 MR. MEDINA: Here. 23 THE SECRETARY: Jeanne Koehler? 24 VICE CHAIRPERSON KOEHLER: Here. 25 THE SECRETARY: Alejandro Velazquez?  7 1 MR. VELAZQUEZ: Here. 2 THE SECRETARY: Jose Guareno? 3 MR. GUARENO: Here. 4 THE SECRETARY: Let the record indicate 5 there are nine present. 6 Those absent tonight are Mayor Brian P. 7 Stack and Commissioner Celin Valdivia. 8 We have a full quorum for tonight’s 9 meeting. 10 * * * 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25  8 1 Housing Element and Fair Share Plan: 2 3 THE SECRETARY: First item on the agenda, 4 Housing Element and Fair Share Plan. 5 Mr. McNamara, please? 6 MR. McNAMARA: Thank you, members of the 7 Board, Mr. Chairman. 8 Patrick McNamara from the law firm Scarinci 9 Hollenbeck, here to follow up on our prior 10 appearances before you with regard to the Housing 11 Element and Fair Share Plan that has been 12 prepared, and has been approved by the court, 13 that was presented to you last spring. 14 We’re here tonight to seek your 15 ratification of that plan, because it’s a 16 necessary element of the regulatory and 17 legislative process. 18 What will then happen from here is we will 19 prepare, after you hear from Ms. Gruel tonight, 20 we will ask you to vote to authorize preparation 21 of a resolution to be adopted at a subsequent 22 meeting. 23 We will then be looking forward to starting 24 the process of introducing it, and then adopting 25 a series of ordinances, which will implement the  9 1 plan and will bring it to life and make it 2 effective throughout the city. 3 So, with that, I’d like to call Ms. Gruel 4 to come up and give a brief synopsis of the plan. 5 And I need her to be sworn in, please. 6 (Whereupon, there was a pause in the 7 proceedings.) 8 MR. ORTIZ: Pat, would you like us to mark 9 -- pre -- is that pre-marked, or do you want to 10 mark it? 11 MR. McNAMARA: The board that’s here has 12 been previously shown, but for the benefit of the 13 record, we’ll remark it as Exhibit A-1. It’s 14 been prepared by Heyer Gruel and Associates. We 15 showed this to you at the last hearing. 16 The properties that are highlighted in -- 17 in yellow are owned by the Housing Authority and 18 managed by the Housing Authority of the City. 19 Those sites that are in red are either 20 existing or targeted sites for the development of 21 affordable housing here in the City. 22 And certainly, this plan, as Ms. Gruel has 23 noted in her prior presentations, is not static. 24 One of the things we will be looking to do to 25 effectuate this plan, and also the settlement  10 1 agreement that was entered into with the Fair 2 Share Housing Center, is to create a sliding 3 scale ordinance that will allow as larger 4 developments come in, or smaller developments 5 come in, an appropriate amount of affordable 6 housing will either be set-aside, or a very 7 significant monetary contribution will be made. 8 In the settlement agreement, the monetary 9 contribution, in lieu of constructing a unit, is 10 I believe $170,000.00. 11 That’s far higher than you would find in 12 many other municipalities throughout the State, 13 and it’s done deliberately to try to incentivize 14 developers to create the affordable housing 15 units, rather than making the contribution. 16 With that, Ms. Gruel, for the benefit of 17 the record and the public, would you please 18 provide us with your educational background, your 19 licenses, and experience as a professional 20 planner in the State of New -- 21 Oh, you need to be sworn in first. 22 MS. GRUEL: And I didn’t get sworn in. 23 MR. McNAMARA: I’m sorry. 24 MS. GRUEL: We were so busy -- 25 MR. McNAMARA: We have to do that first.  11 1 MS. GRUEL: -- with the -- all the 2 electronic -- 3 MR. McNAMARA: I’m sorry. 4 MS. GRUEL: -- paraphernalia. 5 MR. DILLON: Before you start, please raise 6 your right hand. 7 Do you swear the testimony you’re about to 8 give this Board is the whole truth? 9 MS. GRUEL: I do. 10 MR. DILLON: State your name and spell it 11 for the record. 12 MS. GRUEL: Susan S. Gruel, G-R-U-E-L. I’m 13 a licensed professional planner in the State of 14 New Jersey. I have -- I’m a partner in the 15 planning firm of Heyer Gruel Associates, and have 16 qualified as an expert witness in front of 17 numerous boards and bodies and in court. 18 MR. ORTIZ: Madam Chairwoman? 19 CHAIRPERSON CAPIZZI: Yes, please. 20 MS. GRUEL: Thank you. 21 MR. McNAMARA: Thank you. 22 MS. GRUEL: And -- 23 MR. McNAMARA: Ms. Gruel, you testified -- 24 MS. GRUEL: I have been -- 25 MR. McNAMARA: I’m sorry.  12 1 MS. GRUEL: And -- and part of it is we 2 were retained by the City to prepare and be 3 involved in the Affordable Housing Plan for the 4 City. 5 I have appeared in front of this Board -- 6 Bless you. 7 -- I have appeared in front of this Board 8 several times where we have discussed the 9 different portions of the Housing Plan. And -- 10 and I’d just like to say that we have been -- I 11 was so busy with getting this ready. 12 MR. McNAMARA: That’s okay. 13 MS. GRUEL: Maybe I’m -- I’m -- 14 MR. McNAMARA: Ms. Gruel? 15 MS. GRUEL: -- saying stuff -- 16 MR. McNAMARA: That’s okay. No. That’s 17 quite all right. 18 You testified and were qualified as an 19 expert at the April 26th hearing before Judge 20 Costello. 21 MS. GRUEL: Yes. 22 MR. McNAMARA: And at that hearing, the 23 plan that’s being presented here tonight is 24 essentially the same document that was reviewed 25 and approved, not only by the Special Master, Ms.  13 1 Christine Cofone, but also by the court. 2 MS. GRUEL: That's correct. 3 MR. McNAMARA: If you could just -- 4 MS. GRUEL: And -- 5 MR. McNAMARA: -- please provide a brief 6 synopsis then. 7 MS. GRUEL: And it is -- it is basically 8 the same plan that was presented to this Board, 9 and I’ll just hit the highlights. 10 As you recall, there is an obligation of 11 about 1400 units that is all rehabilitation, that 12 the City has, because the City is an urban aid 13 community, and therefore, doesn’t have any new 14 construction obligation. 15 However, as a result of numerous affordable 16 housing developments and units being constructed 17 throughout the City, over -- you know, these 18 years, there are over 1300 affordable units 19 within the City at this stage. 20 And in addition to that, as Mr. McNamara 21 said, which we went over previously with you, and 22 is part of the settlement agreement, is there’s 23 also a mandatory sliding scale, where a developer 24 either has to construct units, depending on the 25 number of units that he’s proposing. It goes  14 1 from five percent to 15 percent. 2 There are also provisions for a payment in 3 lieu of -- of constructing. But again, as Mr. 4 McNamara said, it is 175,000 a unit, for in lieu, 5 which is determined to be approximately the cost 6 of constructing an affordable unit. So, we 7 didn’t want to have that out there. 8 And those are additional affirmative 9 measures that are being -- 10 MR. ORTIZ: Can -- 11 MS. GRUEL: -- that are being proposed. 12 MR. ORTIZ: I don't think we ever marked 13 it. We talked about the color. 14 MR. McNAMARA: Well, for the benefit of the 15 record -- 16 MS. GRUEL: Oh. 17 MR. McNAMARA: -- the exhibit I previously 18 described, as Ms. Gruel was getting prepared to 19 give her testimony, for the benefit of the 20 record, we’ll mark as Exhibit A-1. 21 22 (Whereupon, Aerial of Affordable Housing 23 Sites, dated September 2017, was received and 24 marked as Exhibit A-1.) 25  15 1 MR. McNAMARA: Ms. Gruel, could you please 2 identify what I’ve labeled as Exhibit A-1, for 3 the benefit -- 4 MS. GRUEL: Yes. 5 MR. McNAMARA: -- of the record? 6 MS. GRUEL: It is an aerial with affordable 7 housing sites located; identified on. Yellow is 8 the Housing Authority sites, and pink, red is 9 other affordable housing that are existing within 10 the -- the City. 11 Those -- that -- this map is also within 12 the Housing Plan. You all have a version of 13 this, so -- 14 MR. McNAMARA: And this was presented at 15 the hearing before Judge Costello, as well. 16 MS. GRUEL: Yes. 17 MR. McNAMARA: Thank you. 18 MR. ORTIZ: And this one’s specifically 19 dated September 2017. 20 MS. GRUEL: This one is September 2017. 21 Thank you. 22 MR. McNAMARA: The material aspects, it 23 reflects the same sites that were presented in 24 the report as you’ve just highlighted and in the 25 prior testimony given to Judge Costello. There  16 1 aren’t any new sites that have been added to it. 2 MS. GRUEL: No, not at this point. 3 MR. McNAMARA: And the City is now 4 attempting to actually look for other sites, as 5 well as encouraging developers to try to do 6 inclusionary housing, where possible. 7 MS. GRUEL: That's correct. 8 And actually, there will be some minor 9 revisions to your Development Fee Ordinance, to 10 be compliant with the -- with Affordable Housing 11 standards, where that provides the basis for 12 getting the money. 13 Also, as part of the -- the plan and I know 14 that we’ve spoken about that, as well, is the 15 Affordable Housing Trust Fund Spending Plan that 16 is a requirement of housing. 17 How are you going to project to spend your 18 money that you get through your Development Fee 19 Ordinance? 20 So, we have that laid out. Again, 21 projections. There are certain requirements, in 22 terms of providing certain affordability 23 assistance, writing down rentals for affordable 24 households. 25 But in terms of the new construction,  17 1 either it would be done through rehabilitation, 2 possibly Blue Chapel and veterans housing is 3 another targeted area that is identified within 4 the spending plan that the money is proposed to 5 be used for. 6 MR. McNAMARA: Now at this point, 7 approximately six -- 600,000 in funds have been 8 collected, to the best of your knowledge. And 9 we’ve already had numerous submissions making 10 requests for some of those funds to be allocated 11 to the various projects you’ve just mentioned. 12 MS. GRUEL: Yes. 13 MR. McNAMARA: And we anticipate, as other 14 development proceeds within the City, that 15 contributions to that fund will continue to be 16 made, as required by State law, particularly by 17 non-residential developments, where there’s a set 18 fee that has to be paid, based on the value of 19 the improvements to continue to replenish this 20 fund, going forward in the future. 21 MS. GRUEL: That's correct. 22 MR. McNAMARA: Okay. 23 Thank you. 24 Mr. Chairman, I have no further questions 25 of the witness, at this time, and make her  18 1 available to the Board and the public. 2 MR. VELAZQUEZ: So, it’d be -- it would be 3 everything going forward, after -- if there was 4 an adoption after. 5 MR. McNAMARA: Correct. So that we can 6 implement the settlement agreement, we need you 7 to approve the plan, as has been presented. 8 From there, I think it’s ratify -- your 9 approval gets ratified by the governing body. We 10 would then be looking to introduce a series of 11 ordinances and resolutions. 12 A lot of the resolutions are for the more 13 ministerial aspects of the program. 14 The ordinances will include revising the 15 Land Use Development Ordinance, to implement the 16 terms of the settlement agreement, and the terms 17 of the order of the court to provide for that 18 sliding scale that Ms. Gruel has testified to, so 19 that all future development that -- where 20 applications are filed will have to adhere to 21 these requirements going forward. 22 MS. GRUEL: And in terms of your 23 Development Fee Ordinance, and getting the money, 24 you already have one in place, so you’re already 25 collecting funds. It’s just a matter of tweaking  19 1 some of the wording in it. It’s not any major 2 change -- 3 MR. McNAMARA: Because one of the -- 4 MS. GRUEL: -- to what you have already. 5 MR. McNAMARA: -- one of the requirements 6 is before the money is spent, it used to be you 7 had to submit an annual report to COAH. Since, I 8 don't know if there’s anybody left there to turn 9 off lights these days, and haven’t been for a 10 number of years, we’re now obligated to advise 11 the court through the Special Master. 12 Ms. Cofone, unfortunately, she had a 13 conflict this evening and could not be here, but 14 she had previously endorsed the plan that is here 15 before you. And it is also in conformance with 16 the general terms of the settlement agreement 17 that’s entered into with Fair Share Housing 18 Center. 19 So, those hurdles have been crossed, but 20 going forward, until either COAH is reinstated 21 and re-staffed by the next governor, or there are 22 some other alternative created, we’re going to be 23 obligated, as are all the other municipalities in 24 the State who are doing this, to continue to 25 advise both the special master and the court as  20 1 to when we get spending requests in, and which 2 ones the municipality is interested in dedicating 3 funds to, so that the court sees that the funds 4 are being used appropriately, and within the 5 purposes of -- of requirements of state law and 6 state regulations. 7 MS. GRUEL: And there are also certain 8 monitoring, as we go along, monitoring 9 requirements to make sure that everything, not 10 only the funds are being spent properly, but the 11 status and whether you’re moving forward in terms 12 of -- of what you’re -- what the City is 13 proposing, and how that’s going -- 14 MR. McNAMARA: Yeah. 15 MS. GRUEL: -- successfully. 16 MR. McNAMARA: And once we get through 17 these next steps, there will be a compliance 18 hearing. We’ll be back before Judge Costello. 19 We have to give everybody notice that we 20 demonstrate to the court, we’ve taken all the 21 procedural, administrative and governmental 22 approvals necessary here with you and with the 23 Board of Commissioners and the City 24 Administration, so that we can demonstrate to the 25 special master and the people at Fair Share  21 1 Housing Center that we’re implementing things as 2 committed to at the Fairness Hearing several 3 months ago. 4 MR. VELAZQUEZ: There’s no little angles, 5 God forbid, that there’s ever going to be any 6 loopholes on any of the developers that are going 7 to buy into these. 8 MR. McNAMARA: We would certainly hope 9 we’ve drafted the ordinance well enough to 10 prevent that. You will see the ordinance, like 11 any other land use ordinance that comes to you. 12 Once it’s been introduced by the Board of 13 Commissioners, it will come here. Ms. Gruel’s 14 office and our office have already been working 15 on a draft. If it hasn’t been sent to you, we’ll 16 make sure you get it, so we get your feedback in 17 advance. We value that very much. 18 And our hope would be that as we get into 19 the fall, we can start passing these resolutions 20 and implementing these -- and adopting these 21 ordinances and implementing them to be able to 22 bring this plan to life. 23 VICE CHAIRPERSON KOEHLER: Is there -- is 24 there a limit to -- let’s say, a developer wants 25 to opt out of the Fair Share Housing and they pay  22 1 the 175 per unit, is there a limit to how many 2 units they can -- 3 MR. McNAMARA: Yes, there is a limit. 4 Where, for larger developments, I believe the 5 threshold is either 150 or 200 units. 6 Susan, correct me if I’m wrong. 7 MS. GRUEL: Well, that’s for a set-aside. 8 MR. McNAMARA: Right. There is a cap for 9 larger developments, where they can only pay up 10 to -- 11 MS. GRUEL: Fifty. 12 MR. McNAMARA: -- half -- 13 MS. GRUEL: It’s 50. 14 MR. McNAMARA: Oh -- 15 VICE CHAIRPERSON KOEHLER: Fifty units? 16 MS. GRUEL: Fifty or more units, the 17 developer can only contribute funds up to one- 18 half of the units to be constructed. 19 VICE CHAIRPERSON KOEHLER: To be 20 constructed, not as their allocation. 21 MS. GRUEL: As affordable units. 22 VICE CHAIRPERSON KOEHLER: Okay. 23 Affordable units. 24 MR. McNAMARA: Right. 25 MS. GRUEL: Okay. So you can’t -- so, for  23 1 the larger projects, you can’t just pay -- 2 VICE CHAIRPERSON KOEHLER: Um hum. 3 MS. GRUEL: -- totally, without providing 4 some units on-site. 5 VICE CHAIRPERSON KOEHLER: Okay. 6 MS. GRUEL: Half of the units on-site. The 7 smaller projects that are under 50, yes. 8 VICE CHAIRPERSON KOEHLER: Um hum. You 9 can. 10 MS. GRUEL: You can. The smaller ones. 11 VICE CHAIRPERSON KOEHLER: Buy all of them 12 out. 13 MS. GRUEL: You can. 14 VICE CHAIRPERSON KOEHLER: I see. 15 MR. McNAMARA: Right. But then, the funds 16 -- 17 MS. GRUEL: But not under the -- 18 MR. McNAMARA: But then, the funds stay 19 here in the City. 20 VICE CHAIRPERSON KOEHLER: Right. 21 MR. McNAMARA: They go into this trust 22 account and can be spent on rehabilitating 23 existing older housing stock, where you’ve got 24 bathrooms and kitchens that are sorely outdated 25 and need upgrading, and aren’t built to Code,  24 1 roof repairs. There’s a whole set of criteria 2 that you have to go through to demonstrate that 3 it’s an appropriate subject for use of those 4 funds, before any money is committed by the City 5 Administration or the Board of Commissioners. 6 MS. GRUEL: But it’s at the discretion of 7 the Board -- 8 CHAIRPERSON CAPIZZI: Um hum. 9 VICE CHAIRPERSON KOEHLER: I see. 10 MS. GRUEL: -- as to whether you want to 11 give them an in lieu payment option. 12 VICE CHAIRPERSON KOEHLER: I see. 13 MS. GRUEL: So, it’s may. 14 VICE CHAIRPERSON KOEHLER: Um hum. 15 MS. GRUEL: It is not -- it is not 16 mandatory that -- at least, that’s not the way 17 that we propose to have the ordinance written. 18 VICE CHAIRPERSON KOEHLER: Um hum. 19 MS. GRUEL: That it is not mandatory that 20 the developer has the right. The developer may 21 request to the Board, to this Board or the Zoning 22 Board a in lieu payment. 23 VICE CHAIRPERSON KOEHLER: And then, this 24 would apply -- these ordinances, once finalized, 25 would only apply to new construction going  25 1 forward. The shovel is in the ground -- 2 MS. GRUEL: Right. 3 MR. McNAMARA: Projects that are -- 4 VICE CHAIRPERSON KOEHLER: -- it was -- 5 MR. McNAMARA: -- already in the ground or 6 going -- 7 VICE CHAIRPERSON KOEHLER: It’s not -- 8 MS. GRUEL: They’re gone. 9 MR. McNAMARA: They’re -- 10 VICE CHAIRPERSON KOEHLER: They don’t have 11 to -- 12 MR. McNAMARA: That -- we can’t 13 retroactively apply it. 14 MS. GRUEL: No. 15 VICE CHAIRPERSON KOEHLER: Got it. 16 MR. McNAMARA: Once the Ordinance is 17 adopted, and the appropriate period lap -- runs, 18 which is usually 20 days after adoption, once 19 that period happens and the ordinance is on the 20 books, from that date forward, it binds on all 21 applicants for all projects. 22 The existing ordinance for the development 23 fee for nonresidential development, where we 24 collect the fee, has been on the books for ten 25 years? Maybe no, 1998?  26 1 MS. GRUEL: Well, it was 2009 -- 2 MR. McNAMARA: 2009? 3 MS. GRUEL: -- was the last time -- was -- 4 MR. McNAMARA: All right. So, that’s nine 5 years you’ve had that fee in place, so you’ve 6 been collecting funds for that. And that will 7 continue to happen. 8 MR. ORTIZ: And so, that’s important, 9 obviously, for -- from my perspective, but advise 10 the Board anything in the pipeline right now, 11 this is not going to apply. 12 MR. McNAMARA: Correct. 13 MR. ORTIZ: But any new application after 14 the ordinance is passed, this will apply. 15 MR. McNAMARA: Correct. 16 MS. GRUEL: That's correct. 17 MR. ORTIZ: So, applications are the 18 threshold. 19 MR. McNAMARA: Right. This is governed the 20 same way any other ordinance change would be 21 under the time of application statute that was 22 implemented about five or six years ago, where 23 the Ordinance that is on the books the day you 24 file is what governs. 25 CHAIRPERSON CAPIZZI: Um hum.  27 1 MR. McNAMARA: It used to be you could 2 file, then the town could change the Ordinance, 3 because they didn’t like your application, to 4 force -- 5 CHAIRPERSON CAPIZZI: Right. 6 MR. McNAMARA: -- you to go from the 7 Planning Board to the Zoning Board. 8 Towns can’t do that anymore. It’s what’s 9 on the books the day you file is what governs, no 10 matter changes -- 11 MR. VELAZQUEZ: You’re not -- 12 MR. McNAMARA: -- happen afterward. 13 MR. VELAZQUEZ: You’re not going to have 14 that group partying on 44 -- (indiscernible)-- 37 15 waiting for the big affordable housing unit. 16 That’s what I’m interested in. The big building 17 that are going up there, the huge one. That’s 18 why. 19 CHAIRPERSON CAPIZZI: Any other questions? 20 Is this open to the public? 21 MR. ORTIZ: (Indiscernible). 22 CHAIRPERSON CAPIZZI: Any questions from 23 the public? 24 Yes? 25 Just say your name and address, please.  28 1 MR. PRICE: Yes. 2 Larry Price -- 3 MR. DILLON: Willie? Want him sworn? 4 MR. PRICE: -- 1006 -- 5 MR. ORTIZ: Always. 6 MR. DILLON: Please raise -- please raise 7 your right -- 8 Do you want to be sworn or not? 9 MR. ORTIZ: Or affirm. 10 MR. PRICE: I don’t know. 11 MR. DILLON: Swear him in? 12 Okay. Yeah. Please raise your right hand. 13 Do you swear -- 14 MR. PRICE: I think I will be giving 15 testimony so -- 16 MR. DILLON: Okay. 17 MR. PRICE: Yes. 18 MR. DILLON: Do you swear the testimony 19 you’re about to give this Board is the whole 20 truth? 21 MR. PRICE: Yes, I do. 22 MR. DILLON: State your name for the 23 record. 24 MR. PRICE: Larry Price, 1006 Palisade 25 Avenue.  29 1 MR. DILLON: Thank you. 2 MR. PRICE: Okay. I guess the first 3 question I would ask is a general one. 4 In the Morris County case, Judge Skillman 5 said, talking about affordable housing generally, 6 that -- that -- the -- that it’s applied against 7 cities because they fail to provide a realistic 8 opportunity for the construction of low and 9 moderate income housing. 10 Okay. Our round one requirement was zero. 11 Correct? 12 MS. GRUEL: That's correct. 13 MR. PRICE: Our round two requirement was 14 zero. 15 MS. GRUEL: Correct. 16 MR. PRICE: Correct? 17 And our round three requirement is zero. 18 MS. GRUEL: Correct. 19 MR. PRICE: That’s a pretty good indication 20 that, in fact, Union City provides a realistic 21 opportunity for low income and moderate income 22 housing. 23 So, why are we even here? Why are we doing 24 this? 25 MR. McNAMARA: Let me start.  30 1 It was a policy decision made by the -- 2 Oh, I got to use the microphone. 3 MR. PRICE: Oh, oh, sorry. 4 MR. McNAMARA: That’s all right. 5 MS. GRUEL: Oh, here. 6 MR. PRICE: You stand next to her. 7 MR. McNAMARA: Okay. 8 MS. GRUEL: Okay. You can stand next -- 9 MR. McNAMARA: I can talk into the lapel. 10 MS. GRUEL: Talk into my -- 11 MR. DILLON: No, no. Stand -- stand by the 12 banister, Mr. McNamara. 13 MS. GRUEL: Wait a minute. Wait a minute. 14 Wait a minute. 15 MR. McNAMARA: Okay. 16 MS. GRUEL: Wait a minute. 17 MR. McNAMARA: It was a policy decision 18 made by the Board of Commissioners that there was 19 a desire to make sure that in future years, that 20 affordable housing continue to be created, that 21 people would not get priced out of current 22 housing as we’ve often seen in gentrification in 23 other adjacent municipalities, particularly 24 Hoboken and Jersey City, where a lot of people 25 are being displaced as certain neighborhoods are  31 1 gentrified, redeveloped and rental prices, 2 especially rentals because people in the low and 3 very low income brackets can’t afford a mortgage, 4 and so can’t buy a unit, so they’re pretty much 5 locked into rental housing, that that continue to 6 be available here. 7 And that was an important priority of the 8 Board of Commissioners and the City 9 Administration. 10 So, when we developed what ultimately 11 became the framework for this, in consultation 12 with Ms. Gruel’s office, Mr. Spatz’s office, the 13 idea was to create a mechanism so that as density 14 and other projects came into the City, there 15 would be an allocation. And these units are then 16 locked in for a period of 30 years. Once they’re 17 developed, they have to be deed restricted. 18 So, it would preserve a element of 19 affordable housing, even if gentrification 20 continued to occur and market rate housing 21 continued to be at a higher price point, as 22 compared to maybe five years ago, or ten years 23 ago. 24 And further, we also had a significant 25 rehabilitation share, as Ms. Gruel noted in her  32 1 testimony. And part of what we were trying to do 2 is say, in the future, that we’ll -- and other 3 urban municipalities have rehabilitation shares, 4 that that obligation, in part, could help be met 5 by, in the future, mandating there be some degree 6 of set-asides; that there always be provision 7 here so that over the coming years, and this plan 8 is good for a ten year period, and then will need 9 to be revisited as others will across the State, 10 that there had to be provision, there had to be 11 an automatic mechanism to ensure that no matter 12 how much economic growth or new density or new 13 development occurred, it wasn’t being done at the 14 sacrifice of loss of affordable housing units to 15 the community as a whole. 16 MR. PRICE: Okay. But that’s a discreet -- 17 a decision by the Board of Commissioners is 18 different from being -- having to cope with Mount 19 Laurel litigation. 20 MR. McNAMARA: Well, what it does is it -- 21 by having this plan, we -- and we get substantive 22 certification, it protects the City for a period 23 of at least ten years from any builder’s remedy 24 litigation of any kind. 25 Absent doing this, that threat is still  33 1 potentially, you can argue about the merits of 2 how that -- how serious that threat could be, but 3 it was an important enough policy decision that 4 the City felt that this should be moved forward, 5 so that not only do we provide for affordable 6 housing going forward over the coming ten years, 7 we also have a guaranteed defense against any 8 builder wanting to come in and build -- overbuild 9 a project, put in such a high level of density 10 that it didn’t fit within the fabric of the 11 community, from a planning standpoint. 12 MR. PRICE: Okay. How realistic is that 13 threat? 14 The people in Basking Ridge, with their ten 15 acre minimum lot size, have to worry about that 16 so, because they’re not providing an opportunity 17 for low and moderate income housing. 18 MR. McNAMARA: Um hum. 19 MR. PRICE: But in Union City, we don’t -- 20 we don’t have restrictive housing like that. 21 MR. McNAMARA: Well, it -- 22 MR. PRICE: We have -- we -- as evidenced 23 by we have no requirement. 24 MR. McNAMARA: Because we didn’t have an 25 affirmative requirement doesn’t mean you don’t  34 1 have the threat of a builder’s remedy lawsuit, 2 first. 3 And second, if you look at how 4 gentrification has dramatically changed the 5 waterfront of Jersey City, how much it’s changed 6 so many commun -- sections of the Hoboken 7 community, so many people have been priced out. 8 And so, it was a policy decision made here that 9 the City Administration, and the Board of 10 Commissioners did not want to see that happen in 11 Union City. That they did not want to see people 12 getting priced out and proverbially speaking, 13 getting kicked to the curb for the benefit of 14 gentrification. 15 This helps prevent that from happening. 16 MR. PRICE: Okay. 17 Question. 18 You said ten years protection. 19 MR. McNAMARA: Correct. 20 MR. PRICE: But Morris County says six 21 years. 22 MR. McNAMARA: It was six years, not 23 substantive certification is for ten years. 24 MR. PRICE: Okay. 25 MR. McNAMARA: When -- when that decision  35 1 was made, it was for six years. 2 MR. PRICE: Okay. 3 MR. McNAMARA: Under the old regulatory 4 framework, and correct me if I’m wrong, Susan -- 5 MS. GRUEL: No, you’re right. 6 MR. McNAMARA: -- it was six years for 7 statute of repose. Now it’s ten. 8 MR. PRICE: Okay. So, this would carry us 9 out to 2017 or -- 10 MR. McNAMARA: To 2027, yes. Ten years. 11 MR. PRICE: Sorry. I -- 12 MR. McNAMARA: That’s all right. 13 MR. PRICE: I said -- 14 MS. GRUEL: It’s okay. It’s okay. We knew 15 what you meant. 16 MR. PRICE: Okay. 17 I think, Ms. Gruel, I put the -- what is 18 the difference between current need, 1442 unit -- 19 and affordable housing? 20 MS. GRUEL: The -- the current need is 21 generally translated to substandard units that 22 are occupied by affordable households, that need 23 some kind of -- well, again, substandard units 24 that are generally remedied by rehabilitation, a 25 rehabilitation program.  36 1 However, when you get that need, you can 2 either address it through a rehabilitation 3 program, or you can address it through new 4 construction. 5 Okay? 6 So, there is a fourteen hundred and, I 7 think, 42 unit need that is based on various 8 variables in the census. 9 MR. PRICE: Correct. 10 MS. GRUEL: Okay? 11 And -- and that need, it’s suggested, that 12 part of that need be addressed through 13 rehabilitation, through the continuation of a 14 rehabilitation program, with some of that funding 15 coming from the Housing Trust Fund, but some of 16 the other need would be through new construction, 17 through this -- through these other mechanisms 18 that were being suggested, as well as they are 19 addressed through existing units, affordable 20 units that have been constructed. 21 MR. PRICE: Okay. 22 What I’m really asking here is, we have a 23 present need, and we have the Affordable Housing 24 program. And I’m saying what’s the link, if any, 25 between those two programs?  37 1 MR. McNAMARA: There’s a link in that you 2 have what’s called under the regulatory 3 framework, a present need, as well as a 4 prospective need. And so, what you’re trying to 5 do is plan not only for what you think your 6 obligation is today, dating back over, because of 7 the absence of regulations, because regulations 8 we operated under expired in 1999, and three 9 different times, COAH tried to adopt rules that 10 were called the Growth Share Methodology. Three 11 times, the last being in 2015, the courts 12 invalidated it. 13 So, we’ve been also wrestling with a gap 14 from 1999 to 2016, which the courts have now 15 said, definitely, municipalities must plan for. 16 So, you have a retrospective need, you have a 17 present need, you have a prospective need, and 18 these can be addressed through both the 19 rehabilitation of existing units that are 20 deteriorated, or in a condition that they would 21 qualify for rehabilitation, as well as 22 constructing new units. 23 And I believe you still get a -- 24 MS. GRUEL: So, that’s the link. 25 MR. McNAMARA: -- two for one rental credit  38 1 -- 2 MS. GRUEL: Yes. 3 MR. McNAMARA: -- when you do rentals. If 4 you have, say, a 40 unit obligation, under State 5 regulation, and you did 20 units, and you locked 6 them in as low or very low income units, you get 7 a two for one credit for locking them in at the 8 lowest level, so that people of very modest means 9 still have the opportunity to have decent rental 10 housing. 11 MS. GRUEL: So, the link is that whether 12 it’s through a need for -- to address 13 statistically substandard affordable units, or 14 whether it is a link to address, which in this 15 case because the City is an urban aid community, 16 it doesn’t have it, a prospective new 17 construction obligation, based upon certain 18 criteria. 19 One way or the other, the link is that 20 affordable households need to be addressed and 21 need to be in -- in standard housing, not 22 substandard housing, but adequate housing, and be 23 reasonable to that income level. 24 So, to the extent that it’s either 25 addressing the present need, the rehabilitation  39 1 need that is addressed through not only 2 rehabilitation or -- and/or new construction, in 3 both instances, they’re addressing existing and 4 prospective affordable house -- affordable income 5 households. 6 MR. PRICE: Okay. 7 Let me ask you about the 1442. 8 MS. GRUEL: Okay. 9 MR. PRICE: On page 25 of your report -- 10 MS. GRUEL: Um hum. 11 MR. PRICE: -- it says, therefore, the 12 present need now equates to the indigenous need, 13 which means -- 14 MS. GRUEL: Right. 15 MR. PRICE: -- the obligation is based on 16 deficient housing as determined by pre-1960 17 overcrowded units, incomplete plumbing, and 18 incomplete facilities. 19 MS. GRUEL: Um hum. 20 MR. PRICE: Okay. If I return earlier to 21 page 18 of your report, it indicates -- by the 22 way, could I stop there for -- on page 18, the 23 source is the 2009, 2013 American Community -- 24 MS. GRUEL: Yes. 25 MR. PRICE: -- Survey Five Year Estimates  40 1 about -- 2 MS. GRUEL: Yes. 3 MR. PRICE: -- what the nature of the 4 housing is. 5 MS. GRUEL: Um hum. 6 MR. PRICE: What kind of survey -- who is 7 America (sic) Community Survey? What kind of 8 survey did they did (sic)? 9 MS. GRUEL: It is -- it is a reputable -- I 10 guess, supplement to the U.S. Census data, since 11 they only do it every ten years. American 12 Community Survey has certain checkpoints between 13 that ten year period, where they provide more 14 updated information, based upon surrogates and 15 the way that they do -- I can’t -- don’t ask me 16 all the details of how they do it. 17 But that they -- that they do certain 18 estimates based upon this -- the census and 19 update with information. 20 They are reputable. Everybody uses them. 21 And it is a very legitimate source. 22 MR. McNAMARA: Ms. Gruel, there were also 23 other reports that were generated. One by 24 professionals hired by the 350 plus member 25 municipal consortium, Econsult.  41 1 And there were also expert reports from 2 experts retained by Fair Share Housing Center 3 that had a fairly decent range of numbers. 4 My recollection, the Fair Share Housing 5 Center had a number for Union City that was 6 significantly higher than what they ultimately 7 agreed to in the settlement agreement. 8 MS. GRUEL: In terms of rehabilitation. 9 MR. McNAMARA: Right. I think it was north 10 of 2,000. 11 MS. GRUEL: It was -- yes. And it’s -- and 12 it all depends. As anyone knows, you can play 13 with numbers and statistics. 14 The -- the important point here is that 15 there was a settlement based upon a 1442 number 16 that was for rehabilitation number. And that’s 17 the key provision here that that is a target. 18 However, in Union City, frankly, the City has 19 always been proactive with their affordable 20 housing obligations, and with trying to address 21 it. 22 So, what the number is, it’s almost 23 irrelevant because you have always been extremely 24 proactive. 25 MR. PRICE: Okay.  42 1 MS. GRUEL: And I commend the City for 2 that. 3 MR. PRICE: The 1442, though, consists of 4 three elements. The -- the overcrowded pre-1960 5 housing; pre-overcrowded being defined as more 6 than one -- one occupant -- 7 MS. GRUEL: One point oh-one. 8 MR. PRICE: -- per room. Okay. As well as 9 -- you know, lacking complete kitchen facilities, 10 and lacking complete plumbing facilities. 11 Now, on page 18, you have numbers for the 12 latter, which come from American Community, which 13 I assume -- 14 MS. GRUEL: Right. 15 MR. PRICE: -- probably comes to the U.S. 16 Census -- 17 MS. GRUEL: Right. 18 MR. PRICE: -- in 2010. 19 MS. GRUEL: No. They’re -- they’re 20 modified slightly for that. 21 MR. PRICE: Okay. 22 MS. GRUEL: But -- 23 MR. PRICE: But anyway, you have three 24 elements. What -- how much does each element -- 25 MS. GRUEL: I don't -- I don't have that.  43 1 That’s a statistical methodological calculation. 2 We get that information from these various 3 sources. We don’t do that anymore than we 4 calculate if they’re in communities where there’s 5 a prospective affordable need. That’s a whole 6 different methodology, in terms of weighting, in 7 terms of averages, in terms of how you determine 8 what the variables are. 9 We know what the variables are, but some 10 are overlapping. 11 So, I can’t tell you, I know what it is. 12 We use those numbers to determine what the need 13 is. In any instance, here, it’s only the 14 rehabilitation number. In other communities that 15 we work, it may be the prospective, the gap, the 16 prior round obligation. 17 We use numbers that -- that are based upon 18 certain methodologies. And then, there’s a 19 settlement as to what those numbers are. 20 So, I can’t tell you. I -- if you ask me 21 to calculate that out, as to exactly how that was 22 done, I can’t do it. We rely on -- 23 MR. PRICE: One of the -- one of the 24 problems here is that we’re saying this is the 25 need, but there’s no hard number behind this --  44 1 MS. GRUEL: Well, let me -- 2 MR. PRICE: -- is the need. 3 MS. GRUEL: Let me tell you about 4 rehabilitation. Okay? And that need. 5 That is a statistical number that is based, 6 basically, on census data. Does that mean in the 7 field that those translate directly? No. There 8 are some communities that actually go out and do 9 surveys, say whatever their rehab number is, it’s 10 -- let’s say it’s a thousand, and they say, no, 11 we don’t have a thousand substandard units that 12 are occupied by affordable households. We’re 13 going to go out and we’re going to do a survey. 14 You can actually do that. Often times, 15 there aren’t that many. There can be 16 substantially less. 17 The important part of that is the normal 18 way of addressing a -- a substandard unit, a -- a 19 need, okay, a present need is to provide an -- a 20 rehabilitation program. Set up a rehabilitation 21 program that is funded -- again, it can be funded 22 through some of the county funds, from community 23 development block grant funds, it can be through 24 the -- the spending plan funds, development fee, 25 and it then has to be advertised sufficiently for  45 1 households, qualified households to be able to 2 come and utilize those funds. 3 The purpose of that is to provide the 4 opportunity for house -- qualified households to 5 come and utilize those funds, with the purpose of 6 rehabilitating those units to make -- to make 7 them so they are not substandard. Okay? 8 And they have to have a major defect in the 9 system. They can’t just paint the house, as 10 such. 11 MR. PRICE: Okay. 12 MS. GRUEL: Okay? That’s the purpose. The 13 purpose is doing that, generally. 14 In this instance, the City is continuing to 15 have a rehab program continued, but in addition 16 to that, they are also providing opportunities 17 for new construction as well, and to acknowledge 18 that they already have over 1300 units of 19 affordable housing throughout the City. 20 MR. PRICE: Okay. 21 What are the chances of -- bear in mind, we 22 have three categories; overcrowded, inadequate 23 plumbing, inadequate kitchen. 24 MS. GRUEL: Um hum. 25 MR. PRICE: What are the possible -- what  46 1 are the chances that one unit qualifies under all 2 three and -- 3 MS. GRUEL: It could. 4 MR. PRICE: -- has been counted as all 5 three? 6 MS. GRUEL: It could. 7 MR. PRICE: It doesn’t -- 8 MS. GRUEL: And that’s -- 9 MR. PRICE: -- have a kitchen, it doesn’t 10 have a bathroom -- 11 MS. GRUEL: But that’s why -- 12 MR. PRICE: -- and it’s got four people in 13 it. 14 MR. ORTIZ: Mr. -- Mr. Price? Mr. Price? 15 MS. GRUEL: But Mr. Price, that’s -- 16 MR. ORTIZ: Excuse me. 17 Mr. Price, if you have questions as to the 18 plan specifically, that -- that’s perfectly fine 19 and you have every right to do that. 20 If you’re asking our experts to speculate, 21 which is what you’re -- how I’m hearing it, then 22 -- then all we’re -- all we’re doing is really 23 dancing around the issue. 24 Please ask about -- 25 CHAIRPERSON CAPIZZI: Um hum.  47 1 MR. ORTIZ: -- the particular plan, Mr. 2 Price, -- 3 MR. PRICE: Mr. Ortiz -- 4 MR. ORTIZ: -- please. 5 MR. PRICE: The defining quality of an 6 expert is that they can ask -- answer 7 hypothetical questions. 8 MS. GRUEL: Not in an area that I did not 9 -- 10 Okay? 11 MR. PRICE: Say, I don't know. 12 MS. GRUEL: The methodology -- 13 MR. PRICE: Say, I don't -- 14 MS. GRUEL: I’m just telling you and I told 15 you before, I didn’t do the method -- I did not, 16 and your -- your speculation that one unit could 17 -- could be deficient in all those three areas, 18 -- 19 CHAIRPERSON CAPIZZI: Um hum. 20 MS. GRUEL: -- absolutely. And that’s what 21 I’m saying. 22 MR. McNAMARA: Ms. Gruel -- 23 MS. GRUEL: I don't know how those are 24 counted -- 25 MR. PRICE: Okay. That’s a -- that’s a  48 1 fine answer. 2 MS. GRUEL: -- to come up with that. 3 MR. PRICE: That -- that -- whatever. 4 MS. GRUEL: Okay? 5 MR. PRICE: Okay. 6 MR. McNAMARA: Ms. Gruel, there’s also a 7 regulatory process for the expenditure of trust 8 funds that was established by COAH decades ago, 9 that has to be adhered to by any applicant coming 10 in for the use of housing trust funds -- 11 MS. GRUEL: Yeah. 12 MR. McNAMARA: -- that lays out various 13 criteria that have to be met, beyond what Mr. 14 Price has articulated here. 15 I don't have the rules here in front of me 16 this evening. But the spending plan that you’ve 17 included in this document, that has been made 18 available to the public, then sets forth a 19 process, and then has to be adhered to by any 20 applicant that has to be followed by State 21 regulation, any time any funds are expended for a 22 rehabilitation purpose. 23 Essentially, am I correct? 24 MS. GRUEL: Yes. 25 MR. McNAMARA: Okay.  49 1 MR. PRICE: Okay. Fine. 2 Let me go to one last question, and then a 3 comment. 4 Oh, let me do an aside here for a second. 5 On page 29, this is -- 6 MS. GRUEL: I happen to be on page 29. How 7 about that? 8 MR. PRICE: Great minds travel in a similar 9 path. 10 MS. GRUEL: Oh, my gosh. 11 MR. PRICE: Okay. The -- part of the 12 agreement is, the City agrees that for projects 13 in redevelopment areas involving less than 50 14 units, a one for one density bonus will be 15 applied for each affordable unit required. 16 The problem I have with this is our Land 17 Development Ordinance doesn’t have a density 18 requirement. 19 MR. McNAMARA: If you write a redevelopment 20 plan, you can specify a density formula, based on 21 either building controls or on height or on a 22 formula of X units per acre. 23 The purpose of having that in there is 24 quite often redevelopment projects are on 25 contaminated property, there’s often abandoned  50 1 property that are -- that are looked at, so 2 you’re dealing with demolition costs and 3 remediation costs. 4 So, the idea of the density bonus was to 5 say, look, we would like to have affordables, we 6 realize you’re eating certain cost to redevelop 7 the property, and it is a common instrument, and 8 it’s been used in numerous other municipalities, 9 to allow a one to one density bonus, because the 10 unit that’s being done as affordable, you’re not 11 going to make any money off of. 12 MR. PRICE: Well, the purpose -- all I’m 13 saying to you, the purpose of a bonus is to 14 provide an incentive for -- 15 MS. GRUEL: Correct. 16 MR. PRICE: -- a developer to do something. 17 MS. GRUEL: Correct. 18 MR. McNAMARA: Right. 19 MR. PRICE: And what I’m saying here is the 20 Land Development Ordinance -- 21 MS. GRUEL: Um hum. 22 MR. PRICE: -- has no density requirement. 23 MS. GRUEL: Um hum. 24 MR. PRICE: What we really have are design 25 requirements. In other words, a studio has to be  51 1 400 square feet, a three bedroom has to be 900 2 square feet. They -- you’re entitled to a 3 certain height and a certain cube, and you can -- 4 if you’re the developer, you can divide it up 5 however you want. 6 If you -- you could have maybe 20 studio 7 apartments or you could have ten three bedroom 8 apartments. 9 So, I’m say -- but there’s no density 10 requirement, so you’re allowing a bonus that’s -- 11 you have to provide a different incentive, I 12 think, is what I’m -- what I’m really saying. 13 MR. McNAMARA: We’ll be more than happy to 14 take it under review. 15 MS. GRUEL: Yeah. 16 MR. PRICE: Yeah. 17 MS. GRUEL: Thank you. 18 MR. McNAMARA: But we’re targeting it just 19 at redevelopment areas. 20 MS. GRUEL: Yeah. 21 MR. PRICE: The redevelopment -- 22 MR. McNAMARA: In other words, if you write 23 -- if you -- if you designate a -- 24 MS. GRUEL: Statutorily required 25 redevelopment areas.  52 1 MR. McNAMARA: -- property for 2 redevelopment under State law, and then you write 3 a redevelopment plan for it, instead of following 4 the land development use, you have to -- 5 Ordinance, you have the option, in the 6 redevelopment plan, to say the formula will be 20 7 units per acre, 25 units per acre. 8 MR. PRICE: Correct. 9 MR. McNAMARA: Or whatever it is. 10 MR. PRICE: Oh, okay. 11 MR. McNAMARA: So then -- 12 MS. GRUEL: So that’s what we’re talking 13 about. 14 MR. McNAMARA: -- if it is, and you say, 15 hey, we’ll give you 25 to the acre, but if you 16 put a couple of additional affordable units, 17 we’ll let you go up a couple more, as the offset, 18 to help offset the cost because the affordable 19 unit is not going to be profitable to the 20 developer. 21 MR. PRICE: Okay. 22 MR. McNAMARA: It’s a common mechanism 23 that’s been used. 24 MR. PRICE: It might be to -- to provide a 25 real incentive, you might have to -- because I’m  53 1 saying, we have six redevelopment areas in Union 2 City. None of them -- 3 MR. McNAMARA: We’re not looking to go back 4 and reopen any existing ones. This would be a 5 mechanism for future redevelopment areas. 6 MR. PRICE: Okay. 7 Okay, now, I have -- if you will turn to -- 8 MS. GRUEL: Let me see if I can -- if I can 9 choose -- 10 MR. PRICE: Oh. 11 MS. GRUEL: -- the same page that you’re 12 going to, and then we’ll really -- I’ll really 13 get nervous. 14 Page 11. No. 15 MR. PRICE: No. Sorry. 16 MS. GRUEL: I tried. 17 MR. PRICE: It was the reconciliation of 18 the 1442 to -- sorry. 19 MS. GRUEL: Oh, in the back? The -- 20 MR. PRICE: Yes. 21 MS. GRUEL: In the very back, with the -- 22 with the summary? Is that what you’re -- 32? 23 MR. PRICE: Keep your finger on page 30, if 24 you would. 25 MS. GRUEL: Okay.  54 1 Present need. 2 MR. PRICE: Okay. 3 Okay, and page 31. Okay. 4 MS. GRUEL: Right. 5 MR. PRICE: Okay. On page 30, we -- we 6 start with the present need obligation, 1442, at 7 the -- 8 MS. GRUEL: Right. 9 MR. PRICE: Page 30. 10 MS. GRUEL: Right. 11 MR. PRICE: Okay. At the top. 12 MS. GRUEL: Right. 13 MR. PRICE: And then, there are how you 14 meet -- I take it this -- this isn’t entitled to 15 describe how you’re going to meet that present 16 need obligation. 17 MR. McNAMARA: That’s the plan at present, 18 yes. 19 MR. PRICE: Okay. Okay. 20 And total existing proposed comes up to 21 1327. Fronts from affordable housing, so on 52 22 plus -- and then, there’s a blank -- 23 MS. GRUEL: Correct. 24 MR. PRICE: -- which I filled in as 63, 25 because that would then make the second part  55 1 total up to 1442. 2 MS. GRUEL: Okay, if you want to. But that 3 one is up in the air. We don’t know, because we 4 don’t know how many projects will come in with 5 the mandatory sliding scale set-aside. 6 MR. PRICE: But if it were 63, then the 7 obligation would be balanced by -- 8 MS. GRUEL: Yeah. 9 MR. PRICE: -- whatever you call these -- 10 the -- the proposed and existing units. Okay. 11 MS. GRUEL: It would. But we just didn’t 12 need to do that, so we didn’t put that 63 in 13 because in -- in our opinion, it would be at 14 least that, but -- 15 MR. PRICE: Okay. 16 Now, my question about this is that -- 17 remember, the need arises from substandard or 18 overcrowded units. Okay. 19 Most of the items on the list are existing 20 properties. 21 MS. GRUEL: Yup. 22 MR. PRICE: Saint Michael’s, the public -- 23 whatever. They already exist. 24 MS. GRUEL: Um hum. 25 MR. PRICE: How are they going to meet an  56 1 existing need? 2 MS. GRUEL: They statistically meet and you 3 know what we’re talking about is a -- a 4 regulatory framework that all municipalities have 5 to work within. The manner in which that 6 regulatory framework works is, if you have 7 existing affordable housing units that are credit 8 worthy, which all these are, then those can be 9 used to address your rehabilitation or present 10 need requirement. 11 And that’s why they actually meet that. 12 But what is -- is unusual here is we 13 statistically, as you just said, could probably 14 meet the 1442 and do nothing else. But this 15 Administration, this City wants to go over and 16 above, and as you note, on page 29, the 17 subheading is Additional Affirmative Measures. 18 It’s -- basically, the City’s already met 19 its obligation, but they want to do over and 20 above that, by doing this sliding scale and -- 21 and requiring more affordable units in future 22 development than they really have to, so that -- 23 so that frankly, this City has gone over and 24 above what they need to do. 25 MR. PRICE: Okay.  57 1 One last comment, and -- a question and a 2 comment. 3 Probably the greater supply of affordable 4 housing in Union City is provided by the rent 5 controlled apartments, many of which are quite 6 modest, whatever. And that wasn’t even part of 7 your study. 8 MS. GRUEL: Um hum. 9 MR. PRICE: Even though this is -- 10 MS. GRUEL: Um hum. 11 MR. PRICE: -- a very large supply of our 12 -- probably larger than all of the items -- I 13 don't know how many rent controlled apartments, 14 and how many are reasonably priced, but it 15 probably is a lot more than 1300, because we have 16 25,000 units, so why didn’t you -- 17 MS. GRUEL: You make a -- 18 MR. PRICE: -- look at a -- 19 MS. GRUEL: -- extremely good point, and 20 technically, you can’t consider that within the 21 addressing your affordable housing, because those 22 -- those units are not 30 year deed restricted. 23 Okay? And they have to be deed restricted, based 24 upon a certain -- as you well know, certain 25 income and -- you know, rent and all that.  58 1 But you are absolutely correct that that is 2 a -- that is an additional inventory and pot of, 3 practically speaking, affordable housing that is 4 -- I -- I agree with you. It’s there, but it 5 doesn’t meet the criteria in terms of being 6 considered in light of this. 7 MR. PRICE: Okay. 8 MR. McNAMARA: One of the issues that’s 9 always come up about COAH going back to the -- in 10 the ‘80s and ’90s is it didn’t allow 11 municipalities to take stock of existing housing 12 that wasn’t deed restricted already, even though 13 in terms of its price point, it was in the same 14 market range as a deed restricted unit, which you 15 are allowed to count. 16 It seems like an odd anomaly, but that’s 17 the way the regulatory framework -- 18 MS. GRUEL: Yeah. 19 MR. McNAMARA: -- evolved back in the ‘80s 20 and ‘90s. 21 MS. GRUEL: And even now, Section 8 22 vouchers, which I’m sure there are many in 23 existence in Union City, cannot be counted 24 because it goes with the household and doesn’t go 25 with the unit.  59 1 MR. PRICE: Okay. 2 MR. McNAMARA: If the person moves from 3 unit A to unit B, the credit for Section 8 goes 4 with them, it doesn’t stay at unit A. 5 MS. GRUEL: It doesn’t stay at unit -- 6 MR. PRICE: The rent control -- 7 MR. McNAMARA: So, therefore, for COAH 8 purposes, it doesn’t count. 9 MR. PRICE: -- goes to the unit but it’s -- 10 MS. GRUEL: It doesn’t count. 11 MR. PRICE: -- not deed restricted for 30 12 years. 13 MS. GRUEL: Correct. 14 MR. PRICE: And so -- 15 MR. McNAMARA: Right. 16 MS. GRUEL: That’s what it is. We can all 17 debate as to whether that makes sense or not, but 18 that’s the way -- 19 MR. McNAMARA: People have been for 30 20 years. 21 MS. GRUEL: -- the regulatory -- 22 MR. McNAMARA: I don't think you want to go 23 there tonight. 24 MS. GRUEL: Yeah. 25 MR. PRICE: Yeah. Okay.  60 1 One final question. 2 There are a number of steps, one of which 3 is there has to be a new housing element for a 4 master plan, which would be adopted by the 5 Planning Board. 6 MR. McNAMARA: Um hum. 7 MS. GRUEL: That’s this. 8 MR. PRICE: That’s this. 9 MS. GRUEL: Correct. 10 MR. PRICE: Okay. So, they vote on it and 11 this is -- okay. 12 Then there are -- have to be at least one 13 ordinance that had not been introduced yet, which 14 have to be introduced -- 15 (Whereupon, Alejandro Velazquez left the 16 meeting at 6:55 p.m.) 17 MR. McNAMARA: Yes. 18 MR. PRICE: -- to the Board of 19 Commissioners. 20 MR. McNAMARA: Right. 21 MR. PRICE: And then, come here for review 22 -- 23 MR. McNAMARA: Just like any other land use 24 ordinance. 25 MR. PRICE: Just like any other --  61 1 MS. GRUEL: Correct. 2 MR. PRICE: -- Land Use -- 3 MR. McNAMARA: Right. 4 MS. GRUEL: Correct. 5 MR. McNAMARA: But we also have to engage 6 the Special Master and we have to keep the Fair 7 Share Housing Center in the loop, as per our 8 obligations under the settlement agreement. So, 9 there’s that additional step above and beyond 10 that already required under the Municipal Land 11 Use Law. 12 MR. PRICE: Okay. 13 One last -- and it’s a comment, but it’s 14 really a question to you, Mr. McNamara. 15 MS. GRUEL: Ah-ha. 16 MR. McNAMARA: Okay. I’ll try. 17 MR. PRICE: I read the following, which is 18 from Pheasant Ridge Corporation versus Township 19 of Warren. I’ll give you a cite later if you 20 want. 21 MR. McNAMARA: That’s all right. 22 MR. PRICE: 2001 decision. 23 MR. McNAMARA: Um hum. 24 MR. PRICE: In which Justice LaVecchia said 25 the following:  62 1 In evaluating whether a zoning ordinance is 2 arbitrary, capricious or unreasonable, a court’s 3 rule is not to pass on the wisdom of the 4 ordinance, that is exclusively a legislative 5 function, rather a court engages in a review of 6 the relationship between the means and ends of 7 the ordinance. In the context of a zoning 8 challenge, the means selected must have real and 9 substantial relations to the objects sought to be 10 attained, and the regulation or proscription must 11 be reasonably calculated to meet the evil and not 12 exceed the public need or substantially affect 13 uses which do not partake of the offensive 14 character of those which cause the problem sought 15 to be ameliorated. 16 Don’t you run a risk here -- I mean, you 17 got a present need, and you’ve got a proposal for 18 the -- a tax system, basically, on new -- don’t 19 you run a very real risk of violating Justice 20 LaVecchia’s -- 21 MR. McNAMARA: I don't believe so. I 22 haven’t read that decision, but we’re also 23 dealing with a State constitutional mandate that 24 dates back to the first Mount Laurel decision 25 that was issued by the State Supreme Court, in  63 1 1973, which stated that every municipality had an 2 obligation to provide the opportunity for the 3 development of affordable housing. 4 MR. PRICE: Correct. 5 MR. McNAMARA: So, there’s a State 6 constitutional mandate that sits above and beyond 7 the standard review of a -- of a court when it 8 reviews a municipal ordinance, whether it’s a 9 land use ordinance or any other ordinance. 10 The Supreme Court, in its decision in March 11 of 2015, invalidating for the third and final 12 time the Growth Share Methodology that COAH had 13 tried to adopt over the last 15 years 14 unsuccessfully, reinvested in the courts the 15 authority that COAH had to grant substantive 16 certification and to approve plans. 17 So, now, the court, in effect, has 18 deputized 21 Superior Court judges in -- one in 19 each county, to now oversee this process. 20 Back in the 1980s, after the Mount Laurel 21 II decision, the court created the builder’s 22 remedy methodology, so that builders could go to 23 a town and say, if you don’t let me build what I 24 want to build here, I can sue you, and be allowed 25 to do that.  64 1 That process shifted to COAH, when it was 2 created in 1985. COAH has failed to meet that 3 obligation, as the -- as the courts have 4 repeatedly said, you’ve adopt -- you keep trying 5 to adopt a set of rules we say are 6 unconstitutional. 7 As a result of the March 2015 ruling, the 8 Supreme Court said we’re now taking this 9 authority back away from COAH, because COAH has 10 failed to live up to its regulatory and 11 legislative obligations, and now vest it back 12 with the courts, as it did in the early 1980s. 13 So, now, the judges are acting, in effect, 14 as a super-regulatory agency, with a different 15 standard because they’re now vested with this by 16 the Supreme Court, because of what it did to 17 reinstate this builder’s remedy power. 18 And since then, the State of New Jersey has 19 done nothing, in the way of COAH coming back, 20 properly adopting rules and doing anything. In 21 effect, it’s done absolutely nothing. 22 So, the court even went so far as to say, 23 not only are housing element plans now subject to 24 our review, but spending plans, as was -- as Ms. 25 Gruel articulated here this evening, are now also  65 1 subject to court review, because there’s 2 literally nobody left at COAH to do anything, let 3 alone to try. 4 So, now, courts are vested with that, so 5 they now have to take this in the context of is 6 the municipality doing something that is 7 consistent with its State constitutional 8 requirements, to provide for the reasonable 9 opportunity to create affordable housing? 10 And I certainly don’t think Judge Costello, 11 and you were at the hearing, sir, would have said 12 that this plan met muster, and the Special Master 13 said this plan met muster, if they were concerned 14 that it was transgressing Judge LaVecchia’s 15 decision. 16 MR. PRICE: Justice LaVecchia. Okay. So, 17 your short answer is, no, you don’t think you -- 18 MR. McNAMARA: I don't think it 19 transgresses, sir, no. Not -- I have not had the 20 benefit of reading the decision, but I think the 21 actions that are being taken by the City are 22 clearly within the rubric of the Mount Laurel 23 doctrine, and the Fair Housing Act and the 24 obligations of every municipality to meet its 25 constitutional requirement.  66 1 MR. PRICE: Okay. Based on -- by the way, 2 one point. 3 Judge Havey said in the ’96 dec -- the 4 whatever decision it is, there is not only 5 judicial review -- you know, a priori, 6 beforehand, but there can also be the usual 7 certiorari review after the Ordinance is -- 8 MR. ORTIZ: Mr. Price, again -- 9 MR. McNAMARA: Well, that’s up -- that’s up 10 to whoever decides the -- 11 MR. PRICE: Mr. Ortiz, I’m finished. Would 12 you mind just -- you know, behaving yourself? 13 Okay? 14 MR. ORTIZ: Mr. Price, I think you should 15 reconsider your actions. 16 You’re having a legal argument. We’re here 17 for -- with lay people to review a plan. 18 CHAIRPERSON CAPIZZI: Um hum. 19 MR. ORTIZ: That’s what we’re here for. 20 We’re not here -- 21 MR. PRICE: Fine. I’m finished. 22 MR. ORTIZ: If you would like to appeal 23 this plan, that is absolutely your priority (sic) 24 -- prerogative. Excuse me. 25 MR. PRICE: I’m just -- I’m just --  67 1 MR. ORTIZ: But the point I’m making is, 2 you have this Board, who sits here, voluntarily, 3 after working all day, and you’re having an 4 intellectual conversation about something that 5 none of these people understand, nor does it 6 affect their voting on this plan. 7 MR. PRICE: Mr. Ortiz, it was a 30 second 8 remark, just to say we can look -- the courts can 9 look at this thing beforehand, and they can look 10 at it after, which I think Mr. McNamara would 11 agree with. 12 MR. McNAMARA: And will happen at a 13 compliance hearing, to be scheduled at a date in 14 the future, before Judge Costello, on notice to 15 the public, including yourself, sir. 16 MR. PRICE: Well, that’s the compliance 17 hearing, but -- 18 MR. McNAMARA: Would bring -- 19 MR. PRICE: -- Judge Havey says afterwards, 20 you can go certiorari. 21 MR. McNAMARA: Well, if you wish to -- if 22 Judge Costello rules favorably and the 23 municipalities that have -- at the compliance 24 hearing, and you wish to challenge that, by 25 appeal to the Appellate Division, that’s your  68 1 prerogative, sir. 2 MR. PRICE: Wait a minute. 3 From what Judge Havey said, a prerogative 4 writ act -- it would probably go to Judge 5 Costello, it would go as a separate action, not 6 as part of the Compliance Hearing, the way I read 7 -- 8 MR. McNAMARA: I don't know, I’ve never 9 seen anyone -- anyone appeal a compliance 10 hearing. But then again, there’s a first for 11 everything. 12 MR. PRICE: There’s a first for everything. 13 MR. McNAMARA: Mr. Chairman, I have nothing 14 further at this time. 15 CHAIRPERSON CAPIZZI: Okay. No other 16 questions? 17 MR. McNAMARA: We would ask that the Board 18 act favorably upon it. 19 CHAIRPERSON CAPIZZI: Yes. 20 MR. McNAMARA: And authorize counsel to 21 prepare a memorializing Resolution. 22 CHAIRPERSON CAPIZZI: Okay. 23 THE SECRETARY: Can I have a motion to 24 approve the Housing Element and Fair Share Plan? 25 CHAIRPERSON CAPIZZI: I’ll make a motion.  69 1 THE SECRETARY: Motion by -- 2 VICE CHAIRPERSON KOEHLER: I’ll second. 3 THE SECRETARY: -- Chairwoman Diane 4 Capizzi. 5 Second by? 6 VICE CHAIRPERSON KOEHLER: Koehler. 7 THE SECRETARY: Mrs. Koehler. 8 Roll call on the motion to approve the 9 Housing Element and Fair Share Plan. 10 Mrs. Genao? 11 MS. GENAO: Yes. 12 THE SECRETARY: Ms. Morejon? 13 MS. MOREJON: Yes. 14 THE SECRETARY: Ms. Capizzi? 15 CHAIRPERSON CAPIZZI: Yes. 16 THE SECRETARY: Mr. Rivero? 17 MR. RIVERO: Yes. 18 THE SECRETARY: Mrs. Fernandez? 19 MS. FERNANDEZ: Yes. 20 THE SECRETARY: Mrs. Koehler? 21 VICE CHAIRPERSON KOEHLER: Yes. 22 THE SECRETARY: Mr. Medina? 23 MR. MEDINA: Yes. 24 THE SECRETARY: Mr. Velazquez is absent. 25 He left at 6:55 p.m.  70 1 Mr. Guareno? 2 MR. GUARENO: Yes. 3 THE SECRETARY: Eight in favor, motion 4 carries. 5 Thank you, Mr. McNamara. 6 MR. McNAMARA: Thank you very much. We 7 appreciate your time -- 8 MS. GRUEL: Thank you. 9 CHAIRPERSON CAPIZZI: Thank you for your 10 presentation. 11 MR. McNAMARA: -- in giving us this Special 12 Meeting. 13 MS. GRUEL: It will -- 14 MR. PRICE: Question on this. 15 MS. GRUEL: -- be back. 16 MR. PRICE: As was indicated earlier -- you 17 know, this is going to be -- were you just 18 adopting this as part of your Housing Element of 19 the Master Plan? Or will that be separate? 20 MR. ORTIZ: This is the Master Plan. This 21 will be adopted into the Master Plan. 22 MR. PRICE: Is that what -- what that vote 23 was, among other things? 24 MR. ORTIZ: It has to go back to the Board 25 of Commissioners, just like any other land use  71 1 ordinance. 2 MS. GRUEL: No, it doesn’t. No, it 3 doesn’t. 4 MR. PRICE: Well, wait a minute. Wait a 5 minute. The Master Plan is -- 6 MS. GRUEL: No. 7 MR. McNAMARA: No. The Master Plan is 8 here. They have to ratify -- 9 MR. ORTIZ: No, not the Master Plan. I’m 10 talking about -- 11 MR. McNAMARA: -- as part of the 12 settlement. 13 MR. ORTIZ: I’m talking about the -- 14 MR. McNAMARA: Right. 15 MR. ORTIZ: -- the Fair Share Plan. 16 MR. McNAMARA: Right. 17 MS. GRUEL: They -- 18 MR. ORTIZ: This now goes back to the 19 Commissioners, am I correct, after our 20 Resolution? 21 MS. GRUEL: They implement it. 22 MR. ORTIZ: Right. That’s what -- 23 MS. GRUEL: And they endorse it. 24 MR. ORTIZ: That’s what -- that’s what I 25 meant.  72 1 MS. GRUEL: They implement it through the 2 ordinances, so you will be -- as Mr. McNamara 3 said, the ordinances will be coming back to you, 4 once they introduce those ordinances. 5 CHAIRPERSON CAPIZZI: Right. 6 MR. ORTIZ: Understood. 7 MR. PRICE: But the question, the Housing 8 Element is part of the Master Plan. The -- the 9 -- you know, approving authority for a Master 10 Plan is this -- this Board. 11 MR. McNAMARA: Correct. 12 MS. GRUEL: Yeah. 13 MR. PRICE: Okay. So, my question was, did 14 that vote just incorporate this in the Union City 15 Master Plan? Or will that be -- 16 MR. ORTIZ: The implementation, as was just 17 said, will be through the ordinance that will be 18 coming back. 19 MR. PRICE: Well, wait a minute. That’s 20 the Ordi -- 21 MS. GRUEL: But it was adopted. 22 MR. McNAMARA: No. 23 MR. PRICE: Wait a minute. Wait a minute. 24 MR. McNAMARA: The Resolution that was -- 25 the motion you requested was that this be  73 1 approved, so that it would be incorporated into 2 the Master Plan of the City. I -- if I -- 3 MS. GRUEL: Correct. 4 MR. McNAMARA: -- didn’t articulate that 5 properly, I apologize. 6 MR. ORTIZ: And -- 7 MR. McNAMARA: If you want to revote, based 8 on that, go right ahead. 9 CHAIRPERSON CAPIZZI: No. 10 VICE CHAIRPERSON KOEHLER: That was my 11 understanding. 12 MR. ORTIZ: Let’s -- 13 MR. PRICE: Okay. So, the vote was -- 14 MR. ORTIZ: And the -- and the Resolution 15 will ratify everything in writing, Mr. Price. 16 MR. PRICE: But my only question was, what 17 were you doing? And it was -- you were 18 incorporating this -- 19 MR. ORTIZ: Is it clear now? 20 MR. PRICE: -- in the Master Plan. 21 MR. ORTIZ: Are you clear now? 22 MR. McNAMARA: Yeah. That was the request 23 here tonight by us. 24 MR. PRICE: Okay. 25 CHAIRPERSON CAPIZZI: Yes.  74 1 MR. PRICE: That -- that’s -- 2 MR. McNAMARA: Okay. 3 MR. ORTIZ: That’s what I thought I said. 4 CHAIRPERSON CAPIZZI: Great. 5 * * * 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25  75 1 ADJOURNMENT: 2 3 THE SECRETARY: All right. There being no 4 other item in tonight’s agenda, can I have a 5 motion to end tonight’s meeting? 6 CHAIRPERSON CAPIZZI: Make a motion. 7 THE SECRETARY: Motion by Mrs. Capizzi. 8 Second by Mrs. Koehler. 9 All in favor? 10 11 (Whereupon, there was a chorus of ayes.) 12 13 THE SECRETARY: The ayes have it. 14 Thank you. 15 Good night, everybody. 16 Let the record show that the meeting has 17 ended. 18 19 (Whereupon, the proceedings were concluded 20 at 7:06 p.m.) 21 22 23 24 25  76 1 STATE OF NEW JERSEY : 2 : 3 COUNTY OF ESSEX : 4 5 6 I, DEBRA A. KASZNIAK, assigned transcriber, 7 do hereby affirm that the foregoing is a true and 8 accurate transcript in the matter of the SPECIAL 9 MEETING of the UNION CITY PLANNING BOARD heard on 10 Monday, September 18, 2017 and digitally 11 recorded. 12 13 14 15 16 17 18 19 20 21 22 23 24 Monitored by: Kevin Dillon, Jr. 25 Proofread by: Deborah Dillon