Affordable Housing Before New Jersey Supreme Court…Again

November 23, 2012

The New Jersey Supreme Court is once again tackling the thorny issue of affordable housing. The latest case involves regulations proposed by the Council on Affordable Housing to implement a “growth share” methodology.

As we have previously discussed on this Business Law Blog, the lack of consensus surrounding New Jersey affordable housing policy is creating havoc for municipalities and businesses struggling to make sense of the current legal landscape. The current lawsuit is the latest in a long string of court decisions and legislative action since the 1975 New Jersey Supreme Court decision in Southern Burlington County NAACP v. Township of Mount Laurel. The decision established that municipalities were obligated to use their zoning powers to foster the development of housing affordable to low and moderate-income families.

Since the Mount Laurel decision, COAH has mandated the number of lower-cost units each New Jersey municipality must have. The goal is to prohibit municipalities from using zoning laws to keep these projects out of their communities.

However, COAH has proposed new rules that would employ a “growth-share” methodology to determine the number of units required based on actual need, using projected rates of housing or job growth. The council believes that the current approach is antiquated and is seeking to adopt a more flexible approach.

State and local governments support the new regulations, while builders and developers are opposed. The Appellate Division previously rejected the new rules, and now the New Jersey Supreme Court must weigh in.

In recent arguments before the court, Deputy Attorney General Geraldine Callahan, representing COAH, argued that Mount Laurel does not require a single approach for calculating fair housing obligations and that COAH should be authorized to implement more flexible rules. “Every municipality knows it has a constitutional obligation and that it cannot bury its head in the sand,” Callahan said. “They know they can’t enact the type of zoning ordinances that they did before Mount Laurel.”

However, attorneys for developers were far more skeptical, arguing that there is no factual evidence that the “growth-share” methodology would accomplish the goals of the Mount Laurel decision. Advocacy groups also agreed. “You’d have people sitting there waiting for growth to occur,” Kevin Walsh, the counsel and associate director of the Fair Share Housing Center, said. “That’s a completely impractical way to develop housing in New Jersey.”

This is clearly a controversial issue and one that we will be watching closely. Please be sure to check back for updates.

Source: New Jersey Law Journal

If you have any questions about the proposed COAH regulations or other legal issues related to affordable housing in New Jersey, please contact me, Patrick McNamara, or the Scarinci Hollenbeck attorney with whom you work.


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