Ten months after the New Jersey Supreme Court took affordable housing administration away from a state agency and put it into the hands of the courts, a new report does little more than further muddy the question of how many homes will built and when.
, a Philadelphia consulting firm hired by more than 200 municipalities working with attorney Jeffrey Surenian to set their housing quotas in the courts, two weeks ago and Fair Share Housing Center, which is pushing for towns to fulfill their obligations, made that report public earlier this week.
Since most communities want to minimize the amount of housing they need to build, and Fair Share is pushing to maximize the number of units built, it is not surprising that the affordable housing requirements calculated by the dueling reports are far apart. Econsult puts the statewide obligation at about 155,000, less than half the nearly 350,000 estimated by Fair Share's expert David Kinsey, a visiting lecturer at Princeton University's Woodrow Wilson School of Public and International Affairs.
The differences are due to varying interpretations of the Supreme Court's March 2015 ruling, removing jurisdiction over the issue from the Council on Affordable Housing and putting it back in the courts, which had ordered so-called "builder's remedy" developments of thousands of units in some municipalities to provide homes for those of low- and moderate-income. To prevent such changes, but still ensure communities provide their "fair share" of affordable homes as required by the court's two Mount Laurel rulings, the Legislature enacted the Fair Housing Act and created COAH.
According to the court's decision 10 months ago, municipalities must fulfill any outstanding prior obligation established by COAH through 1999, when its last rules expired. That adds up to nearly 86,000 units, although some of those likely were already built. It is up to the courts to determine any additional obligations from 2000 through 2025.
One of the major reasons Econsult's estimates are so much lower than Fair Share's is because the consultant asserted in its report that there was no need to calculate obligations for that time period.
"While obligations have been legally assigned by COAH and upheld by the Courts for Round 1 and Round 2 (1987-1999), no comparable obligations have been legally assigned and upheld for the “gap period” (1999-2015)," the report states. "Since this period generates no identifiable, additive housing need to that calculated for the current cycle, and the period is not associated with a legally defined obligation against which compliance can reasonably be judged, no calculation of additional need is appropriate to conduct for this period."
Kevin Walsh, Fair Share's executive director, said such an assertion is ridiculous and will be discounted by the courts.
"Econsult was hired by towns that want really low numbers and they gave them really low numbers," he said.
But Michael Cerra, NJSLM assistant executive director, said that Richard Reading, a Princeton consultant appointed special master on the issue by the Ocean County judges handling Mount Laurel cases agrees with Econsult's determination.
In a memo to the jurists, Reading wrote that "a methodology for determining an affordable housing need for a retrospective 'gap period' has not been presented, other than its inclusion within prospective need which is contrary to prior round methodologies, the language of the FHA and the history of determining affordable housing needs." He said trying to identify and quantify unmet need from a prior time period "would appear to defy an empirical calculation." While generating an estimate may be possible, Reading concluded, "such an estimate would be speculative, would still be contrary to prior round methodologies and would not be likely to be acceptable to the various parties of interest in this matter."
Walsh said Reading's comments were due to his having "incomplete information" and the parties are submitting that information to him by next Friday.
The argument against calculating obligations for that gap period "flies in the face of long-established precedent that housing need doesn't 'disappear' and must be met," he said. The towns' arguments "put people in an impossible position -- if they move into housing they can't afford, they (the towns) argue, then they lose their rights to housing they can afford."
Another judge agrees. In a decision involving seven Middlesex County municipalities last October, Judge Douglas Wolfson wrote, "I am satisfied that the accumulated need that developed during the gap period must be included as a component of a municipality's affordable housing obligation," though that could be phased in over time so that "towns not be radically transformed 'overnight.'"
The differing language leads to the question of whether the cases in each court’s vicinage will be decided using the same rules or different ones.
While the state Supreme Court ruling had held out hope that at least some municipalities might have had their obligations set by the end of last year, now the earliest any trial might happen is next month.
The courts will have widely conflicting numbers from which to choose, or may set their own. Econsult's report set the current need statewide at 33,140, with a prospective need for the next decade of 36,494. Fair Share estimates the present need (2010) at 62,057 with a third round net prospective need for 1999-2025 of 201,643 units.
For the vast majority of municipalities, using Econsult's estimates would allow municipalities to provide less affordable housing -- 15 towns would build at least 1,000 fewer units with Elizabeth, Newark, and Passaic having to provide about 3,000 fewer homes. Still, 25 communities would have smaller obligations under Fair Share's plan, with Belleville providing 155 fewer units than if Econsult's report is used.