Three years after the New Jersey Supreme Court gave the judiciary responsibility for determining local affordable housing obligations, the process has resulted in 215 municipalities negotiating agreements with housing advocates that could result in the construction of tens of thousands of homes — some affordable and others market-rate.
Although the justices urged the state Legislature to take back control of the process in March 2015, when they judged the Council on Affordable Housing (COAH) no longer capable of overseeing it, Superior Court judges are continuing to decide housing issues, sometimes over the loud objections of elected officials.
Without legislative action, the justices set up a process by which municipalities can seek court approval for their housing plans, which often happens through negotiations with housing advocates. Those that do not get court approval leave themselves open to lawsuits from builders and, potentially, the requirement to allow high-density housing within their borders.
The court involvement remains a sticking point for lawmakers like Assemblyman Jon Bramnick (R-Union), minority leader of the lower house.
“Now the court is micromanaging how many units you have to build in your community,” Bramnick told a gathering Monday night of about 40 Cranford residents who are fighting a proposed 905-unit housing development that would include 135 affordable homes. “That is ridiculous. The Legislature is supposed to do this.”
Bramnick told residents that Assembly Republicans have submitted a host of bills that would ease the process on municipalities and eliminate court involvement. However, the Democratic-led Legislature has not allowed the bills a hearing or vote.
In fact, there has been no movement for years in the Legislature to even tweak a process created by the Fair Housing Act that many in both parties considered broken. The last substantial action by lawmakers was more than seven years ago, when they sent a compromise bill to former Gov. Chris Christie, but he vetoed the measure, saying it would be worse than the system in place at the time.
The process of determining municipal affordable housing obligations is spelled out in the Fair Housing Act, signed in 1985 and amended in 2008. That created COAH to oversee the process in response to the Supreme Court’s first two Mount Laurel rulings, which stated that all municipalities have a constitutional obligation to provide their fair share of homes affordable to those of limited means. Municipalities would draft housing plans spelling out where they would permit construction of enough low-cost housing — usually in conjunction with market-rate units — to meet the local obligations COAH had set.
Elected officials and citizens often complained about the process, saying the quota COAH had calculated was unreasonable, there was not enough room to accommodate all the units and adding so much housing would require the construction of a new school or change the character of the community. The council tried several times in the last decade to write new housing rules but they did not pass constitutional muster.
When Christie took office, he made his opposition to the process clear and tried to eliminate COAH but was thwarted by the courts. Council staff eventually drafted new rules in 2014, but members deadlocked and could not agree to adopt them. That prompted the Supreme Court’s decision to put judges in charge of the process, more than 15 years after the last valid rules had expired.
Three years ago, municipalities began seeking court approval for housing plans and often were challenged by Fair Share Housing Center, the Cherry Hill-based nonprofit organization that has been the lead group pushing for the construction of affordable homes. To date, 215 municipalities have agreed to housing obligations through this process and some have even begun construction on low-cost homes, according to Fair Share spokesman Anthony Campisi.
“We are negotiating very amicable settlements,” Campisi said, adding that the process has been working well.
But many local officials and Republican legislators say the process is expensive, requiring a municipality to defend its plan in court, and in some cases has led to the striking of obligations that will result in more than 1,000 new homes being built in a community.
“These things end up in the courts,” Bramnick said. “There are normally years of litigation … it’s expensive for towns. Your property taxes go up.”
Since taking office last January, Gov. Phil Murphy has so far been mum on the issue of affordable housing obligations. His office did not answer questions about his plans. While much of his campaign last year focused on making New Jersey more affordable, Murphy did not specifically tackle the question of the Mount Laurel requirements and what role the state should play in ensuring that municipalities do their part in allowing low-cost housing within their borders.
The Legislature could wind up making a new attempt at tackling the issue soon, though, as the new chairman of the Assembly Housing and Community Development Committee has scheduled a hearing on the general topic of affordable housing for later this month.
Assemblyman Benjie Wimberly (D-Passaic) was recently named head of that committee to replace its longtime chairman Jerry Green, a Union County Democrat who died last spring and had been a sponsor of affordable housing-reform legislation. Wimberly plans to hold a hearing on the topic at Union County College, in Green’s former district, on July 25. Yvette Roland, Wimberly’s chief of staff, said the hearing will not focus on any specific legislation but is meant as an “information gathering” session to allow people from around the state to talk about the issue.
There is reason for lawmakers to take notice. In addition to the local cases being negotiated in the courts, a Superior Court judge in Mercer County earlier this year set a statewide affordable housing quota of nearly 155,000 additional units through 2025.
Bramnick spelled out the Republican plan, with some of the bills requiring the amendment of the state constitution. Among them are ones that would:
Shift housing obligations from municipalities to the state (and );
Eliminate the so-called builder’s remedy, which gives judges the power to allow a developer to build four market-rate units for every affordable one they build to meet a community’s Mount Laurel obligation if a municipality does not get a court-approved housing plan and a developer files a suit to force development ();
Amend the constitution to prohibit municipalities from engaging in exclusionary zoning but also not require communities to build housing for those of low and moderate income ();
Define which municipalities must provide for inclusionary zoning, set the proportion of units in a development that could fulfill Mount Laurel obligations at 10 percent, rather than the current 20 percent and eliminate the nonresidential development fee that currently provides towns with funds to build affordable housing ();
Eliminate the current exclusions from having an affordable housing obligation that such cities as Newark currently enjoy ().
Bramnick is also calling for the creation of an independent, bipartisan authority to determine housing obligations based on statewide need, rather than on a town-by-town basis, and a constitutional amendment to require that all affordable housing decisions are made by the Legislature, rather than the courts.
“The courts should not be deciding how local zoning works,” Bramnick said. “We can take that away from the courts by passing a Constitutional amendment.”
Campisi said the GOP’s housing bills are not designed to create a good, fair system for determining affordable housing obligations and seeing that low-cost homes are built.
“What this is all geared toward is bringing us back to what existed before 2015,” Campisi said. “The goal here is to freeze the process.”
For instance, the Republican legislation ending the imposition of the builder’s remedy would run afoul of the Supreme Court’s Mount Laurel doctrine and would make it difficult for developers to recoup their investments because they have to sell or rent affordable units for prices that are lower than the construction costs.
Cranford residents Monday night said they feared Hartz Mountain Industries, which owns the 30-acre site at 750 Walnut for which it has proposed the 905-unit development, could bring a builder’s remedy suit of its own should the township not approve its plan.
“We are facing down a freight train,” said Don Smith, who has lived in the township for 51 years. “We cannot take this overdevelopment.”
Bramnick urged the residents to get involved and said the Republicans are planning a rally in September in Trenton to mobilize people for whom the current system is not working to call for the Democratic-controlled Legislature and Murphy to bring sanity back to the process.
“There’s politics going on in Trenton,” he said. “The speaker (of the Assembly) controls the agenda. I have no power to put these bills up. Every time we have done that, we have been voted down.”