Affordable housing ruling brings sigh of relief in suburban towns in N.J.

Published July 11, 2016
By Salvador Rizzo

New Jersey’s suburban towns got a big break Monday in the number of affordable housing units that must be built over the next decade, as a state appeals panel overturned a court order that could have added thousands of units to developers’ plans.

State law continues to mandate that cities and suburbs allow the development of low-income housing. But Monday’s ruling by the appeals court means that municipalities may be able to build roughly 100,000 fewer units over the next decade than what some housing groups were advocating.

At issue was a February decision by a state judge in Ocean County, Mark Troncone, who had ordered a group of municipalities to follow a special formula when calculating their affordable housing obligations. Municipalities were told to consider not only present and future conditions, but also the “unmet need” that accumulated from 1999 to 2015, a period during which New Jersey’s housing program was inactive.

Rampant dysfunction and neglect by policymakers have plagued the state’s housing program since 1999, effectively shutting it down for more than a decade.

In Monday’s ruling, the appellate judges acknowledged that the political morass had taken a toll on affordable housing construction, but they added that current laws and court precedents did not require Troncone to establish a “separate and discrete” obligation for towns to build low-cost homes covering the neglected period from 1999 to 2015.

If the appeals court had ruled the other way and upheld Troncone’s ruling, it would have set a statewide precedent roughly doubling the number of affordable housing units to be built over the next 10 years, from an estimated 100,000 to nearly 200,000, according to experts following the case.

Because New Jersey cities generally do not lack for affordable housing options, the litigation mostly affects suburban towns, many of which have resisted court mandates to build low-cost homes alongside new office parks or residential neighborhoods.

Mayors and the state League of Municipalities said Troncone’s ruling would lead to absurd results and excessive obligations, far beyond what the state Supreme Court has envisioned in a series of housing decisions dating to the 1970s. Michael J. Darcy, the league’s executive director, said the appeals court’s ruling “creates a rational path forward that we anticipate will end costly litigation and allow municipalities to move forward in meeting their communities’ affordable housing needs.”

Housing groups and advocates for the poor had cheered Troncone’s ruling in February as a key development that could breathe new life into the state’s housing program for low- and moderate-income families. Kevin Walsh, executive director of the Fair Share Housing Center, an advocacy group for housing rights, criticized the appellate court’s ruling Monday.

“This plays into the hands of wealthy towns that are seeking to delay and exclude because it requires further studies at a time when the needs of New Jersey working families, seniors and people with disabilities are so great,” Walsh said.

Governor Christie has declined to enforce the state’s existing affordable housing laws, calling them too burdensome for towns and, by extension, local taxpayers.

Under Christie, state officials have flouted a series of court orders and neglected to operate New Jersey’s affordable housing agency, effectively leaving mayors and builders in the dark as to their obligations. Problems began well before Christie, however, with a series of legal challenges and unhappy mayors impeding the affordable housing program for many years.

Sen. Christopher “Kip” Bateman, R-Somerset, said Monday that the appeals court saved local taxpayers from “a catastrophic Ocean County court decision that would have caused a ripple effect, decimating municipalities statewide.”

Bateman has introduced legislation to update the way New Jersey calculates affordable housing needs, but there has been little appetite among Democrats or Republicans in recent years to tackle any affordable housing question. The courts have invited the Legislature repeatedly to address long-neglected problems in New Jersey’s housing program, but no legislation has advanced in the State House since January 2011.

The state Supreme Court ruled 6-0 last year that the delays in the housing program had gone on long enough. Instead of waiting for the governor and Legislature to act, the court enlisted state judges to oversee municipalities’ development plans and ensure that they meet affordable housing needs.

But the three-judge panel of the Appellate Division on Monday indicated that although judges have more power to approve or reject development plans, they cannot tinker with the underlying affordable housing formula. That job still belongs to lawmakers and the governor, the appeals court said, reversing Troncone’s ruling and ordering more proceedings.

“We discern no constitutional basis for the judiciary, much less this court, to intrude into the policy-making arena,” Superior Court Judge Douglas Fasciale wrote for the appellate panel, noting repeatedly that the state’s Fair Housing Act of 1985 speaks only of a “present and prospective need.”

The appeals court, however, also seemed to accept the argument that towns must provide some accommodation for the unmet need that arose from 1999 to 2015, said Walsh, of the Fair Share Housing Center, a party to the case.

Representatives for the Fair Share Housing Center said they had not decided Monday whether to ask the state Supreme Court to review the ruling by the appellate court.

Staci Berger, president of the Housing and Community Development Network of New Jersey, said affordable housing programs are meant to benefit low- and moderate-income families as well as disabled and elderly residents. Without a real effort to revive the state’s affordable housing, New Jersey will become too expensive for middle- and lower-class residents over the next generation, she said.

“The court’s decision creates new hurdles for too many households that have struggled to make ends meet,” Berger said. “If we can’t afford to live here, we can’t get our economy back on track.”

Email: [email protected]