By Anne Levin

In an effort to emend a situation that leaves open the possibility of new housing projects being built without setting aside 20 percent of the units for affordable housing, Princeton Council is looking for a way to close the loophole and ensure that affordable units are included in new developments.

The set-aside requirement was part of an agreement last year in which the municipality settled a five-year lawsuit with the advocacy group Fair Share Housing. But during a recent meeting of the town’s Site Plan Review Advisory Board, it was revealed that the requirement, which was in place in what was formerly Princeton Borough before consolidation with the former Township, was no longer in effect.

Council members first believed that the requirement was inadvertently left out. But they have since determined that it was omitted on purpose. “The change was made intentionally by the consultants who were helping us reach the agreement and draft the new ordinances,” Councilman David Cohen said on Tuesday. “It was not clear to the members of Council that the Borough requirement was being eliminated. It was done because apparently there is more recent legislation, which we’re still trying to nail down exactly, that made the old Borough rule no longer in conformance with state law. The rule had been that any property that was developed with more than five units had to provide 20 percent affordable. Apparently, there were changes in state law instituted after that was passed. We’re still waiting for details from our attorney.”

As it now stands, the 20 percent set-aside applies only to development applications that require variances. So if a project application conforms to zoning regulations, it is not required to include affordable units. “As soon as you ask for a density variance you lose the exemption,” Cohen said.

To fix the problem, revising the comprehensive affordable housing ordinance was originally considered. “But the likelihood is that the ordinance won’t be revised, because the way it was written was intentional in order to be aligned with current rules at the state level,” Cohen said. “So we can’t change it. It was a knee-jerk reaction at first, but it’s not the appropriate response.”

Instead, the Council is trying to figure out how many other properties in town might be subject to the same exemption. “We’re trying to brainstorm how to make sure they don’t use the exemption,” Cohen said. “Council’s intent is that every developer should have to do affordable housing. There are things we can do to try to close the loophole, property by property. The simplest way is to add properties to our affordable housing plan. There is nothing that stops us from doing that. And we know that in 2025, the third round [of the affordable housing obligation] will be completed and the fourth round will kick in. We know we will need more affordable housing going forward, so it makes sense to add more properties to our plan.”

Comments from the community have been less than favorable, Cohen acknowledged. “We’ve heard a lot from people, who were under the same impression we were,” he said. “We were under the impression that the old rule was being extended. We shared that with members of the public, and all the affordable housing advocates in town were relying on that understanding. They’re bent out of shape. So we’re trying to get correct information out there, and make people understand it was done under state law. We’re doing what we can to repair the loss.”