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Progress Slow On Affordable Housing, Towns Wait for NJ Top Court

Justices must decide whether housing obligations accrued during 15-year gap must be built

affordable housing

Eighteen months after New Jersey's courts regained control of affordable housing plans, 36 municipalities have agreed or been ordered to provide nearly 17,000 units, while most towns wait for a ruling by the state's justices on a key question that could require the construction of tens of thousands of additional homes.

When the state Supreme Court in March 2015 declared the New Jersey Council on Affordable Housing defunct and kicked responsibility for setting municipal obligations to the Superior Court, it set an ambitious schedule in the hopes of speeding up a process that was 15 years overdue.

But everything related to affordable housing in the state seems to move at a snail's pace. While municipal settlements have been trickling in across the state, that process is mostly in a holding pattern as local officials wait to see how the Supreme Court will decide the question of whether they will have to provide for the housing need accrued during the so-called gap period from 2000 to 2015 for which COAH failed to set valid housing obligations.

"I think I probably thought we'd be closer to the finish line," said Michael Cerra, assistant executive director of the New Jersey State League of Municipalities, in characterizing the amount of progress made since the court took COAH out of the affordable housing process. "If the court upholds the gap ruling, I think the finish line might be in sight. As is typical with Mount Laurel issues, things take longer than anticipated."

After COAH could not agree to pass new affordable housing rules that included updated municipal obligations, the high court issued a major ruling that left it up to municipalities to seek approval for plans for meeting their low- and moderate-income housing obligations under the state's Fair Housing Act or leave themselves open to lawsuits. It was the latest in a string of landmark decisions collectively known as the Mount Laurel Doctrine, which began with a 1975 ruling that found exclusionary zoning in the township, and elsewhere in the state, unconstitutional. The doctrine requires all municipalities to provide their fair share of affordable housing and led to the Fair Housing Act, which created a mechanism for determining obligations and a council -- COAH -- to oversee that.

With COAH out of the picture, more than 300 towns sought court approval, and the Cherry Hill-based Fair Share Housing Center and at least one developer are involved as parties in virtually all those cases. At issue in the typical case is the number of units each town must zone for, with a consultant to the housing advocacy group generally estimating an obligation higher than one offered by the municipality or its consultant -- 283 joined together to hire Philadelphia-based Econsult Solutions to calculate their requirements.

A major point of contention in the calculations is whether they should include obligations that would have accrued during the gap period. An Ocean County judge sided with Fair Share and answered “yes,” but an appellate panel reversed that order, saying there is no mandated gap obligation. Earlier this month, the Supreme Court agreed to hear the question, scheduling arguments for the end of November.

Kevin Walsh, Fair Share's executive director, said at the time that he was happy the court agreed to take the case on an expedited schedule.

“The law is clear that towns are not permitted to simply erase their unmet housing obligations," he said. "We look forward to making our case before the Supreme Court and getting our state’s fair housing process back on track.”

Little more than 10 percent of cases have been settled, according to Fair Share. The settlements span nine counties, with a third in Middlesex County, and range from no additional units in Pine Hill in Camden County to 1,396 in Old Bridge in Middlesex. A judge ordered a 1,533-unit obligation for South Brunswick following a trial, but the final number will depend on the Supreme Court's decision on the gap period, as well as the possible imposition of a cap on the number of homes a single community might have to allow.

Fair Share is pleased with the settlements as a whole, with officials saying they often traded a high total number of units for more realistic projects that could be built soon. Some would provide homes for those with very low incomes, and others would create supportive housing for those with special needs. There are projects that are part of a downtown revitalization, a brownfields redevelopment, and an effort to reclaim foreclosures.

But Cerra termed the percentage of settlements small, saying, "To only be 10 percent settled tells you there isn't enough movement.... A settlement requires two parties to basically meet in the middle. That doesn't seem to be happening statewide."

Other municipalities are interested in settling to get some certainty in their planning. For instance, eight Mercer county towns last week submitted a letter to the court stating their willingness to accept obligations calculated by a court-appointed expert. That expert, Richard Reading, estimated a statewide need for about 240,000 units. That includes past requirements for units, some of which may already have been built, and present and future need but not any obligation incurred during the gap period.

"His methodology is reasonable enough that these municipalities felt it was in everyone's best interest to stipulate to it and move on," Cerra said. "That's an extraordinary move."

Still other towns are unwilling to settle and fighting in court for the lowest obligation they can get, according to Fair Share.

With the Supreme Court's decision to decide the gap period issue, the court process is mostly on hold, as towns, advocates and judges waiting for guidance. The high court's ruling will determine whether tens of thousands of additional housing units -- on top of whatever numbers are established to meet past, present and future needs -- are built.

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