NJ Supreme Court Weighs Affordable Housing Obligations

By Briana Vannozzi

At stake is whether towns will be on the hook to make up for tens of thousands of affordable housing units that weren’t built due to 16 years of dysfunction and disagreements at the state agency tasked with overseeing it. The state Supreme Court today heard arguments challenging a lower court ruling that told towns they don’t have to make up for housing obligations missed between 1999 and 2015.

“Ignoring 16 years of households that are real people, that are people with needs, that are people who need opportunities and people with disabilities, doing that is among the cruelest things that could happen to low-income households in the state of New Jersey,” said Fair Share Housing Center Attorney Kevin Walsh.

Walsh argued the case for Fair Share Housing New Jersey. The litigation dates back 40 years, when the Mount Laurel decision declared New Jersey the first state in the nation barred from using zoning to exclude the poor. Today Walsh contended that the Legislature couldn’t have foreseen a 16-year gap due to dysfunction when writing towns need to consider “present and prospective needs.” Meaning all those families left out need to be considered.

“You know the sharp edges of Mount Laurel have been taken off. And the reason is that municipalities over the past 30 years have succeeded in persuading the courts, and the Legislature,” Walsh said.

“Over 17 years while COAH failed, builders have been confronted with these problems. They propose development and municipalities don’t know their obligation,” said Thomas Carroll, land use counsel at the New Jersey State Builders Association.

Enforcing the obligation has been a messy task for municipalities, too. In 1985, the Legislature created the Fair Housing Act. It requires the state to periodically issue new guidelines for required affordable housing. But after years of impasse, the courts ruled in 2015 that judges would take over enforcing the housing requirements. So far 80 towns have reached agreements with fair housing advocates, creating more than 30,000 units of housing.

“The whole question is what did the Legislature intend? And it’s very clear what the Legislature intended when they used the word present because they were responding to Mount Laurel 1 and Mount Laurel 2. They both define ‘present’ identically — low- and moderate-income households living in substandard or overcrowded units. So it’s clear what present means,” said Barnegat Township Attorney Jeffrey Surenian.

Surenian represents Barnegat Township. He says affordable housing advocates steered away from the plain meaning of the statute. That didn’t include the words “retrospective needs.” But the justices seemed skeptical.

“Are you saying there is no obligation for people from that gap?” asked Justice Walter Timpone.

Surenian said, “Yes.”

Confusion remained over which category to assign to those families who were missed during the gap year. Both sides remained optimistic after the hearing, saying they expect a swift decision, possibly by the end of this year.