Fair Share Housing Center


N.J. high court to hear appeal in affordable-housing dispute

Posted by Laura Denker on September 9th 2016

by David O’Reilly, Staff Writer

New Jersey’s Supreme Court said Thursday that it would hear a challenge that will decide whether municipalities now must zone for the affordable housing units they did not zone for between 1999 and 2015.

The court announced it had accepted an appeal by the Fair Share Housing Center, an advocacy group that is seeking to overturn a July 12 ruling by the Appellate Division.

The three-judge panel ruled unanimously that municipalities have no obligation to zone for units not created during the nearly 16-year “gap period,” when the state failed to devise an acceptable formula for calculating each town’s obligation.

“We felt all along this is a decision the Supreme Court would take because [the appellate decision] goes against decades of precedent,” said Kevin Walsh, Fair Share’s executive director and chief counsel. “So it was not a surprise.”

Jeffrey Surenian, a Brielle lawyer representing a consortium of 290 municipalities, who was opposite Walsh in the June 8 oral arguments before the appeals panel, said he welcomed the opportunity to argue the matter before the Supreme Court.

“The complete unreasonableness of Fair Share Housing’s position will be on display,” Surenian said. “It will be very apparent that Fair Share is asking the Supreme Court to rewrite the Fair Housing Act instead of following it.”

Walsh said he was optimistic that the Supreme Court would rule in Fair Share’s favor. Surenian said he believes he has a “very compelling argument.”

A reversal could increase by tens of thousands the number of Mount Laurel-type low- and middle-income housing units that the state’s 565 cities, townships, and boroughs must zone for by 2025.

Mount Laurel derives from a series of Supreme Court decisions, beginning in 1975, that decreed in a case involving Mount Laurel Township that municipalities may not adopt zoning ordinances that willfully exclude low- or middle-income households.

The high court said it will hear oral arguments on the appeal Nov. 28 or 29.

It also stayed the Appellate Division’s ruling, which means, Walsh said, “we now proceed in the trial courts as if the Appellate Division did not rule.”

In March 2015, the Supreme Court ordered the state’s 15 Superior, or trial, Courts to take charge of reviewing and certifying municipalities’ affordable housing plans.

That came after the justices concluded that the Council on Affordable Housing (COAH), which had been charged with administering the 1985 Fair Housing Act, had been largely dysfunctional since 1999.

The court then instructed every municipality to develop by year’s end new plans for meeting its affordable housing obligations over the next 10 years, and submit them to the courts.

Townships and judges were instructed to use the formulas for affordable housing obligations that COAH applied prior to 1999.

But Fair Share - which has special intervenor status in affordable-housing litigation - and the planning firm hired by Surenian’s consortium came up with vastly different estimates of need.

Fair Share estimated about 200,000 new units were needed if the gap obligations were factored in. The planning firm hired by Surenian’s group, Econsult Solutions of Philadelphia Inc., dismissed the need for any gap period obligation and estimated the statewide need at about 37,000 units.