The clock continues to wind down for municipalities to file and obtain approval for their fair-share housing plans with the courts.
A Middlesex County Superior Court decision, released yesterday, gives municipalities no more than five months from when they initially filed a request for “temporary immunity” from lawsuits while they file plans to complete an agreement or satisfy their obligations to provide affordable housing.
Otherwise, the courts could order what they consider a “fair share” of affordable housing, resulting in towns essentially losing their rights to home rule as related to zoning.
Technically, the time for municipal officials to ask for immunity from lawsuits over their affordable-housing plans– or lack of plans — ran out this week, with hundreds of municipalities filing with the courts.
But in the first court decision involving a town seeking immunity from developers’ lawsuits while their housing plan is adjudicated, Superior Court Judge Douglas K. Wolfson ruled that Monroe Township has five months to resolve any disputes over its housing plan or risk a court decision that could force additional construction of units for those with low or moderate incomes.
In most towns across the state, this is likely to be a complex process, with one side seeking the construction of as many units as possible and many municipalities trying to reduce the number of homes they must allow to meet their obligation under the state Fair Housing Act. That law embodies the landmark New Jersey Supreme Court rulings establishing the so-called Mount Laurel Doctrine that all communities must provide their “fair share” of affordable homes.
It is unclear whether the other vicinages – the various county court systems across the state – will follow suit under Wolfson’s ruling, but in the decision Wolfson noted that the “Supreme Court authorized the courts to grant a period of temporary immunity for up to five months — “preventing any exclusionary zoning actions from proceeding”3 — to those municipalities that promptly sought such declaratory relief.
Essentially, Wolfson’s ruling means that municipalities have until sometime in December to fulfill their obligations or risk having the court apply the requirements for affordable housing.
A major player will be the Fair Share Housing Center. The Cherry Hill-based organization has been at the forefront of efforts to get towns to build affordable homes for decades and is required to be notified of all court filings related to this new process, which takes the place of the New Jersey Council on Affordable Housing’s former jurisdiction in this area.
The big question that COAH was supposed to have answered — and didn’t – is how many Mount Laurel units each municipality must provide.
The answer, according to Fair Share and its consultant, is a lot: Almost 350,000 housing units.
That breaks down to 62,057 units that are presently needed, 85,964 that should have been built between 1987 and 1999 during one of the first two rounds, and 201,382 in new units to meet the need for 1999 through 2025.
According to the estimates, the number of units municipalities would have to build varies wildly.
Four communities — Walpack, Victory Gardens, Prospect Park and Pemberton Township — have an obligation of 10 or less, while Elizabeth and Passaic would each have to provide more than 4,000 units, all of them rehabilitated.
Anthony Campisi, a spokesman for Fair Share, said those numbers are only theoretical. In practice, the number of units is bound to be smaller because the estimates don’t take into account units that may have been built already. In addition, communities get bonuses for building certain types of homes under the law’s complex rules. And nearly 20 percent of the total units statewide are not new construction, but refurbished existing apartments.
Jeffrey Surenian, who represents 48 municipalities on affordable-housing issues, called Fair Share’s estimates “patently stratospheric and unreasonable” and has led an effort to get an expert to calculate obligations for towns. Dozens of communities have joined forces and hired Rutgers University Professor Robert Burchell to calculate how many units they are required to provide.
The last time Burchell calculated obligations was for COAH last year, and his estimate was just 115,000. He will be doing new calculations for the municipalities.
The last time the state stipulated official obligations was in 2008, when the statewide total was 241,781 units, but those, which were based on a growth share methodology, were overturned by the Supreme Court.
New Jersey has not had valid affordable- housing rules since 1999, when COAH’s last rules expired. As a result, according to advocates, few units have been built.
Four months ago, the court found COAH to be nonfunctioning and transferred jurisdiction over affordable housing to the state Superior Court system.
It did not take any position on Burchell’s estimates or the rules COAH was to have adopted. t. So it will be up to the Superior Court judges around the state to determine how many units municipalities must provide.
And with the process just beginning, no one knows what they may decide.