Kevin Walsh (Carmen Natale)
For lawyers involved in the seemingly endless fight over a town’s obligations to provide affordable housing in New Jersey, it’s now time for small ball.
The state Supreme Court ruled on Jan. 18 on the last two remaining large disputes regarding housing opportunities for low- and moderate-income families in the state. Now towns and affordable housing advocates are moving toward the trial courts to determine individual towns’ obligations.
“The big battles are over,” said Thomas Carroll III, counsel to the New Jersey Builders Association and a partner at Princeton’s Hill Wallack. “Now, everything is going to be handled in the trial courts.”
Kevin Walsh, the executive director of the Cherry Hill-based Fair Share Housing Center, agreed.
“A lot of towns are choosing to litigate” over their obligations, “but there are some who are attempting to reach a settlement,” Walsh said.
FSHC and the builders association are joining in an effort to maximize the number of affordable housing units that trial judges could order to be built statewide, which could be as many as 240,000 units.
At the same time, a coalition of local governments is urging trial judges to use a more conservative approach, saying that figure is unrealistic. It’s “grossly excessive,” argues Jeffrey Surenian, who runs a firm in Brielle, and represents a coalition of about 60 municipalities.
Currently, the lawyers are in the midst of a consolidated trial before Mercer County Superior Court Assignment Judge Mary Jacobson to determine the affordable housing obligations of East Windsor, Lawrence, Princeton, Hopewell, Hamilton and West Windsor townships. It is not clear when Jacobson will issue a ruling.
The trial comes on the heels of the Supreme Court’s most recent landmark decision in the decades-old series of so-called Mount Laurel rulings. Earlier this month, the Supreme Court said that towns are responsible for meeting affordable housing needs that accumulated during the 16 years in which the state failed to issue regulations detailing how many units should be built.
Those affordable housing obligations did not disappear simply because the now-defunct state Council on Affordable Housing failed to issue regulations, the court said.
Justice Jaynee LaVecchia, writing for the court, rejected an argument made by local governments that they should be relieved of their affordable housing obligations for the years between 1999 and 2015—the so-called gap years—when the council failed to issue regulations.
The ruling came a little more than a year after the same court ruled that the judiciary, not the executive branch, would be responsible for determining individual towns’ affordable housing obligations.
The court, citing the inability of the council to come up with new rules, said low- and moderate-income residents, or entities acting on their behalf, can turn to the courts for relief when they believe a municipality is attempting to avoid its constitutional responsibility to provide for affordable housing.
The affordable housing council was created by the Legislature in 1985 as part of the Fair Housing Act, in response to the court’s Mount Laurel rulings dating back to 1983. Those rulings said municipalities must provide for housing for low- and moderate-income buyers, and may not enact exclusionary zoning ordinances that effectively prevent them from being built. If municipalities submitted affordable housing plans to the council, they could avoid litigation until all administrative remedies had been exhausted.
The council had been under court orders to produce new affordable housing rules since 1999. Several proposals were rejected and, in October 2014, the council failed to comply with the last order to submit a new set of rules. It was at that point that the court assumed control of determining the obligations, and said that designated judges in each vicinage would hear Mount Laurel cases.
In the meantime, the lawyers say they are focusing on each individual town, and attempting to suggest obligations after taking into account the present need for affordable housing, balanced against residents who have died, who are no longer financially eligible for affordable housing, or who already have been placed in an affordable unit.
“There still will be litigation, but it will be at a local level for a while,” Walsh said.
“The big battles are over,” said Thomas Carroll III, counsel to the New Jersey Builders Association