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No “gap period” affordable housing obligation, says NJ Appeals court

Posted by Laura Denker on July 11th 2016

In a complex decision issued Monday, New Jersey’s Appellate Division ruled that municipalities are not obligated to calculate and zone for affordable housing needs that went unmet between 1999 and 2015, but must consider them in their future housing calculations.

“We hold that the Fair Housing Act does not require a municipality to retroactively calculate a new “separate and discrete” affordable housing obligation arising during the “gap period” between 1999 and 2015, the three-judge panel ruled.

Instead, they wrote, cities and towns should use previously established methods for calculating their present and future affordable housing needs.”

The so-called “gap period” occurred when the state Council on Affordable Housing, created by the legislature to develop guidelines for implementing court-mandated housing obligation, was unable to develop an acceptable formula for calculating those obligations.

The judges also overturned a March ruling by Ocean County Superiour Court Judge Mark Troncone that Barnegat Township and other muncipalities in his vicinage were obliged to calculate and meet their “gap period” obligations.

And yet they seemed to simultaneously indicate that the gap period obligations are not completely erased. Citing a previous Supreme Court ruling, they asserted that “unfulfilled obligations ‘should be the the starting point for a determination of a municipality’s fair share responsibility.’”

The Fair Share Housing Center, an advocacy group for affordable housing and an intervenor in the appeal, called the ruling “murky” Monday morning and said it was still studying it.

The New Jersey League of Municipalities said in an email that the ruling “isn’t murky at all,” and Jeffrey R. Surenian, an attorney representing a coalition of about half the state’s municipalities, called it crystal clear.

Fair Share Housing has asserted that municipalities still have an outstanding obligation to zone for the units that were not created during the gap period, and estimated that number to be about 200,000 units.

Surenian and the League of Municipalities have estimated the number to be about one-fifth that figure.

by David O’Reilly, STAFF WRITER www.philly.com