NJ Supreme Court Affordable Housing Decision Means Towns Must Get Act Together

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The New Jersey Supreme Court have sided with affordable housing advocates over wealthier towns in today’s published decision. In the decision, the Court analyzed whether the pent-up housing need that arose for persons in low- and moderate-income households formed during the sixteen-plus years since the expiration of the Council on Affordable Housing’s (COAH) second housing cycle rules may be assessed as part of a municipality’s third cycle housing obligation and captured under a present-need analysis. Their decision found that “We now hold that a form of present-need analysis under the Fair Housing Act, N.J.S.A. 52:27D-301 to -329 (FHA) — redefined to include a component premised on a calculation of those low- and moderate-income New Jersey households, newly formed since 1999, that presently exist and are entitled to their opportunity of access to affordable housing — provides the appropriate approach to addressing statewide and regional need.”


“The Court requiring towns to access affordable housing needs during the 16-year housing gap period will mean more options for working families. Now that towns must account for future, present, and past needs the amount of affordable housing will increase in some of New Jersey’s communities. That is why it is critical for towns to come in and settle now so they can meet their obligations. We support affordable housing and believe every town must meet their obligations, but they must do it in a way that minimizes environmental impacts. We should not be opening up development in environmentally sensitive areas. This is a huge victory for housing advocates, but we must make sure it is done right,” said Jeff Tittel, Director of The New Jersey Sierra Club. “The Supreme Court ruling is a huge warning to the Christie Administration to take action, however the Governor has refused to. In the past, some of the worst sprawl projects came from the courts so that is why it is so important that we have a real plan in place.”

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The Court also stated that “Additionally, we recognize, as we have before, that the Legislature is not foreclosed from considering alternative methods for calculating and assigning a municipal fair share of affordable housing, and to that end, we welcome legislative attention to this important social and economic constitutional matter” (pgs. 31-32). The legislature needs to fix COAH and the Fair Housing Act. The Christie Administration needs to come out with new rules that actually follow the Mount Laurel II Supreme Court decision and Fair Housing Act. Otherwise we are concerned that the courts will throw out all of New Jersey’s affordable housing plans.

“The failure of the Christie administration to adopt appropriate and legal third round rules for COAH put every town in New Jersey in jeopardy. Since the Governor has refused to act, we need the legislature to step in. Unfortunately, the last time the legislature stepped up to address COAH, the Governor vetoed it. This is a cynical game and abuse of power because the Christie administration would rather side with developers than actually build affordable housing. We need transparency and assurance because we cannot rely on the mercy of the Courts,” said Jeff Tittel.


During the 16-year gap period, COAH failed to devise a formula clarifying how much affordable housing each town was responsible for building. Now the Supreme Court has ruled that the trial courts must employ an expanded definition of present need. They stated “The present-need analysis must include, in addition to a calculation of overcrowded and deficient housing units, an analytic component that addresses the affordable housing need of presently existing New Jersey low- and moderate income households, which formed during the gap period and are entitled to their delayed opportunity to seek affordable housing. The trial courts must take care to ensure that the present need is not calculated in a way that includes persons who are deceased, who are income-ineligible or otherwise are no longer eligible for affordable housing, or whose households may be already captured through the historic practice of surveying for deficient housing units within the municipality” (pg. 31).


“Now that some towns will be expanding affordable housing options, we must ensure that this is done in a way that does not promote sprawl. If you towns grow, they should meet their obligation, but if you don’t grow they should not be penalized with more housing that threatens open space. We must utilize existing infrastructure, as well as prohibit building in environmentally sensitive areas and commit to smart growth. That means we should not be extending sewers in new areas and prohibit development near endangered species or on steep slopes. We should not be building on toxic sites or be putting people in flood prone areas,” said Jeff Tittel. 


Affordable housing and COAH decisions determine land use patterns in New Jersey for generations to come more than anything else. We are also concerned that if affordable housing is not done right it could open up New Jersey towns to builder remedy lawsuits allowing developers to go after open space areas. Unless we ensure that we have appropriate rules that balance the need for affordable housing and the environment we will end up promoting sprawl and overdevelopment in our last remaining open spaces.


“We want to build affordable housing, but it needs to be done in the right way. We cannot allow wealthier communities not to have to meet their obligations prompting more segregated housing in New Jersey. This lets the wealthy towns get wealthier while at the same time allowing urban areas to continue to decline. If you could build a McMansion on farm fields then you should be able to build affordable housing too. We need rules in place because otherwise developers can declare open season on open space in New Jersey with builder remedy lawsuits. People in New Jersey need affordable housing and we need to do it in a way that is responsible,” said Jeff Tittel, Director of the New Jersey Sierra Club. “New Jersey can and must provide affordable housing to families without hurting the environment.”


The decision can be found online here: http://www.judiciary.state.nj.us/opinions/supreme/A116MvO.pdf