Affordable housing advocates won a notable victory when an Ocean County Superior Court judgethat could force hundreds of municipalities to welcome large numbers of new affordable housing units if judges in other jurisdictions apply the same standard.
Superior Court judges are now responsible for overseeing the affordable housing process in New Jersey because the state Supreme Court last year took that responsibility away from the Council on Affordable Housing, following years of dysfunction and a lack of support from Gov. Chris Christie’s administration. The judges will decide how many affordable housing units municipalities must plan for. Every community has an obligation to meet its "fair share" of required units as a result of the Supreme Court's Mount Laurel rulings. Municipalities and advocates have been arguing about the specifics since the 2004, and COAH, the state agency created to settle disputes, was unable to draft new rules acceptable to the court.
Last Thursday's decision was the first opinion on the size of local affordable-housing obligations since municipal officials presented their own estimates of housing burdens last month. Judge Mark Troncone largely sided with Fair Share Housing Center, the Cherry Hill-based advocate involved in affordable cases throughout the state. He ruled that municipalities in Ocean County, at least, will have to plan for not only past and present low- and moderate-income needs, but also for the 15 years, known as the gap period, for which COAH was unable to determine the Mount Laurel housing obligations.
Troncone's opinion is not automatically valid in other counties. But the man Troncone appointed as "special master" to study the issue and craft a report recommending the local housing obligations that the judge should impose is also serving as special master for seven other counties. Since he is performing similar analyses for judges for these counties, he could use the same methodology that includes gap period in recommending obligations for towns in those counties, as well. It's also possible that the Mount Laurel judges in at least some of the state's remaining vicinages will follow Troncone's lead on their own. A judge in Middlesex County last fall wrote an opinion in a case involving seven towns that was the first to require that gap period be included in crafting housing obligations.
“This ruling shows that towns’ fair housing obligations are much larger than they have been claiming,” Fair Share Housing Center Executive Director Kevin Walsh said. “We are going to continue to fight hard for the right of New Jersey families, seniors, and those with disabilities to live in thriving neighborhoods. This ruling is an important step in that fight.”
Walsh said the ruling validates Fair Share's arguments that the central provisions of a report by Econsult Solutions, a Philadelphia consulting firm hired by 283 municipalities to calculate their housing quotas for the court, "couldn’t stand up to judicial scrutiny."
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 ruling 11 months ago removing jurisdiction over the issue from COAH after it failed to adopt so-called third-round housing rules and putting it back in the courts. Econsult's estimates were so much lower than Fair Share's primarily because the consultant asserted in its report that there was no need to calculate obligations from the gap period that began at the end of COAH's second-round rules, in 1999, through 2015.
"The New Jersey Supreme Court found the 'obligation to meet the prospective lower income housing need of the region is, by definition, one that is met year after year in the future, throughout the years of the particular projection used in calculating prospective need,'" Troncone wrote. "Therefore, New Jersey’s affordable housing need is cumulative and there can be no gaps in time left unaddressed. This obligation is clear and, moreover, one that has been acknowledged without objection by both COAH and the municipalities themselves in the past."
Jeffrey Surenian, the lawyer who organized the municipalities that funded the Econsult report and who represents 60 towns on housing matters before the courts, disagreed with Troncone's ruling and said it could lead to the establishment of unreasonably large obligations.
"What is the point of imposing obligations that are patently unrealistic?" Surenian said. "How does that advance their (Fair Share) interests and the interests of the general public? The way to get this process moving is to have numbers that are realistic."
Surenian cited a report that Robert Powell of Nassau Capital Advisors wrote for the New Jersey State League of Municipalities that found the realistic demand for all types of housing in the state over the next decade to be less than the number of affordable units Fair Share's report contends are needed during the same time period.
He noted that the Legislature passed the Fair Housing Act in 1985 in response to the outcry from municipalities and the public over court rulings. The FHA created COAH and made towns that complied with its rules "bulletproof" from developers' lawsuits seeking to construct large numbers of both affordable and market-rate housing under the so-called builder's remedy. But if the courts today wind up setting large obligations, it will leave municipalities with little control over their own zoning and no incentive to try to proactively build affordable housing.
Michael Cerra, the league's assistant executive director, said it is not clear that the Ocean opinion will be adopted by other judges. If it is not, and other judges set smaller obligations that do not include the gap period, more litigation is likely.
"I think a lot of these issues will go back to the Supreme Court," he said. "Part of our frustration is that we have fought for legislation to reform the process for years and the administration and the Legislature can't find a way to compromise."
Eleven municipalities are currently in Ocean County Superior Court on affordable-housing matters. Hundreds of others are submitting affordable-housing plans for judicial review across the state as a result of last March's Supreme Court ruling. The Ocean ruling involves a dozen lawyers representing municipalities, housing advocates and builders.
While the parties remain in court fighting over housing quotas, little if any affordable units are being built.
Said Cerra, "This is a very costly, time-consuming, labor-intensive process that really distracts from the underlying goal of providing housing."