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In a decision that could reshape hundreds of communities, the New Jersey Supreme Court ruled Wednesday that municipalities must allow the development of affordable housing for poor and middle-class families whose needs were ignored for more than 16 years.
The state's top court voted 6-0 to reject arguments advanced by several towns, Governor Christie's administration and the League of Municipalities, who said local governments faced no legal requirement to provide affordable housing for poor and middle-class families during a period spanning from 1999 to 2015.
The ruling — and dozens of recent settlements negotiated separately by towns — are likely to spur the development of tens of thousands of affordable housing units in New Jersey over the next decade. But it is unclear exactly how many. Estimates vary widely and the Supreme Court did not settle that issue Wednesday.
The Fair Share Housing Center, a nonprofit that argued on behalf of poor and middle-class families, said towns would have been able to avoid up to 60 percent of their affordable housing obligations over the next decade if the court had ruled the other way, leading to more racially and economically segregated communities.
"This ruling means that thousands of lower-income and minority families will be given the opportunity to live in safe neighborhoods, send their children to good schools and work at jobs where they live instead of traveling hours commuting each day," said Colandus Francis, chairman of Fair Share Housing Center's board and an official with the Camden chapter of the NAACP.
Michael Cerra, assistant executive director of the League of Municipalities, said the ruling raised more questions than answers and would generate more litigation in the lower courts as experts try to decipher how many affordable housing units must now be built. But the justices also attempted to "forge a compromise" on Wednesday, he said, because they rejected some arguments from the Fair Share Housing Center and, as a result, municipalities' obligations will not increase as much as some housing advocates wanted.
In a decision written by Justice Jaynee LaVecchia, the high court once again reaffirmed its commitment to a series of landmark housing rulings in the Mount Laurel cases that date to 1975. The New Jersey justices for decades have said that the state's poorest residents have a right to affordable housing opportunities in their communities and that towns must allow a reasonable level of development.
Enforcing the court’s housing decisions, however, has been a haphazard process. Suburban towns have resisted the Mount Laurel rulings over decades of follow-up litigation. The state Council on Affordable Housing, or COAH, which was created to oversee the program statewide in 1985, has been famously broken for years and stopped issuing rules in 1999.
The Supreme Court ruled in 2015 that the delays had gone on too long; it ordered towns to sidestep COAH and go directly to trial court judges to settle affordable housing disputes.
But then the question became what to do about housing needs that went unfulfilled from 1999 to 2015, the period during which COAH was paralyzed. LaVecchia wrote that the court would "waste no time" settling that question. The state constitution requires municipalities to provide affordable housing for the "gap period," she wrote.
"The Mount Laurel constitutional affordable housing obligation did not go away," LaVecchia wrote.
"Attending to that need is part of the shared responsibility of municipalities," she added later. "We hold that towns are constitutionally obligated to provide a realistic opportunity for their fair share of affordable housing for low- and moderate-income households formed during the gap period and presently existing in New Jersey."
Although Christie opposes the Mount Laurel mandates, the four justices he has appointed — Anne Patterson, Faustino Fernandez-Vina, Lee Solomon and Walter Timpone — all joined LaVecchia's opinion, as did Justice Barry Albin. Chief Justice Stuart Rabner did not participate in the case.
Christie was not involved directly, but the Attorney General's Office had filed a brief concurring with one town, Barnegat, whose attorney argued that it had no obligation to provide affordable housing for the gap period. A spokesman for the Attorney General's Office declined to comment Wednesday.
An ongoing debate
One of the central questions before the Supreme Court was a technical one: Which legal term should be used when calculating a town's unfulfilled affordable housing obligations from 1999 to 2015?
The state's Fair Housing Act of 1985 orders municipalities to consider "present need" and "prospective need."
Attorneys for the Fair Share Housing Center had urged the court to rule for "prospective need." That would lead to thousands more units being built, they said. But the justices went with "present need," and they redefined that term to include the housing obligations that stacked up from 1999 to 2015, "a period of time affecting almost a generation of New Jersey citizens," LaVecchia wrote.
Kevin Walsh, the lead attorney for the Fair Share Housing Center, said the ruling was nevertheless a breakthrough.
"This decision clears away one of the main obstacles remaining in the fight for fair housing in New Jersey," Walsh said. "The towns who were fighting in court are outside the mainstream and now know that they will not be rewarded for further obstruction and delay."
Staci Berger, president of the Housing and Community Development Network of New Jersey, said state residents have been buffeted by a recession, record foreclosure rates and Superstorm Sandy. "Our hardworking families, seniors and people with disabilities have struggled to find homes they could afford during this time," she said. "New Jerseyans and their needs did not simply disappear during the gap period, and as the court ruled, they cannot be ignored."
Cerra said the justices' ruling "doesn't really provide finality." Experts will now go back and forth in the lower courts debating how to calculate towns' housing obligations, he predicted. Out of 565 municipalities in the state, 150 to 200 have yet to resolve what level of affordable housing they will be providing over the next decade, Cerra said.
"The ruling provides little guidance and will likely result in additional property tax resources being expended," said Michael Darcy, the League of Municipalities' executive director. "We again call upon the administration and Legislature to craft long-overdue reforms and promulgate a reasonable, rational state housing policy."
The state justices said that from now on, municipalities calculating their "present need" must account for "overcrowded and deficient housing units," as well as "an analytic component that addresses the affordable housing need of low- and moderate-income households created since 1999."
Households that were low- or moderate-income from 1999 to 2015 must still be in that income bracket presently and must still be located in New Jersey in order to count, the court said. Officials should not factor in deceased people or double-count units that already have been deemed "deficient," LaVecchia added. As before, municipalities also must continue to factor in their "prospective need," which estimates future demand for affordable housing.
Partisan divide
Whether to provide zoning for affordable housing, and how much, are issues that have divided the state for years, often pitting Democrats against Republicans. Some wealthy suburban towns and rural municipalities warn that the court's mandates would lead to more sprawl and higher property taxes.
“This court-ordered overdevelopment will change the landscape of many communities," said Assemblyman Parker Space, R-Warren. "It will decimate open space while forcing taxpayers to pay for additional services to handle the increase in population. Property taxes will skyrocket."
Assemblywoman Holly Schepisi, R-River Vale, criticized the court and said "the failure of the Legislature to address the social engineering of the court should not result in changing communities forever."
"This ruling clearly creates potential challenges for municipalities who already built out much of their developable land over the last 16 years," said Joseph DeCotiis, an attorney at the DeCotiis, FitzPatrick, Cole and Giblin law firm, which represented Brick Township. "Additionally, many developers who already have planned market-rate housing on properties in many of these municipalities may be forced to reconfigure those designs to meet new requirements at their own cost."
Although several bills have been introduced in recent years, New Jersey lawmakers have not advanced any legislation on affordable housing matters since a failed attempt at reform in early 2011. Christie for years has shown no interest in fixing the program or enforcing the state's affordable housing laws. But the Supreme Court said they are welcome to try again.
"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," LaVecchia wrote.
The Supreme Court upheld a ruling issued last summer by the state Appellate Division. Although that decision was much more favorable to towns seeking to tamp down their housing quotas, the justices drastically modified it in a way that will ramp up housing obligations.
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