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Recent Developments with New Jersey Affordable Housing

May 11, 2018 Posted in Landlord/Tenant Law

It has been forty-three years since the first Mount Laurel decision, decided by the New Jersey Supreme Court in 1975, recognized that municipalities have a constitutional obligation to produce a fair share of housing for low to moderate-income families.  A March 2018 Mercer County Superior Court decision shines light on how complex a task it is for a court to produce a reasonable fair share methodology.

The Mount Laurel obligations had been implemented by the Council on Affordable Housing (COAH) in rounds.  The First Round ran from 1987 until 1993.  The Second Round proceeded from 1994 to 1999.  However, as the Court explained in a prior 2015 decision, the Third Round stalled under COAH’s direction.  As a result, the Court ordered the State’s trial courts to establish numerical affordable housing obligations and to certify municipal plans through declaratory judgment actions.  The Third Round is scheduled to run from 2015 until 2025, leaving a sixteen (16) year “Gap” from 1999 until 2015, which must also be satisfied as per the Court’s 2017 direction.

The courts are not strangers to the difficulties of producing a reasonable fair share methodology.  The Second Mount Laurel decision in 1983 recognized how time-consuming and difficult these fair share determinations can be.  Nevertheless, given the Court’s directive in 2015, the Mercer County Court was required to tackle this monumental task, which it did in a 217-page decision.

The numerical fair share calculus involves a labyrinth of separate steps, tackling multiple issues.  The Court, quoting AMG Realty Co. v. Township of Warren, 207 N.J. Super. 388, 453 (Law Div. 1984), noted that “The pivotal question is not whether the numbers are too high or low, but whether the methodology that produces the numbers is reasonable.”  A court must identify the relevant region, determine present and prospective need, and allocate those needs to the municipality.  This involves population projection models (“fraught with uncertainty”), employment factors (“absence of reliable data”), and computation of median incomes (“many imponderables”).  Calculating prospective need is exceedingly complicated because, by its nature, it asks the court to make inferences about the future. 

The Court often looked to COAH’s historic practice as a lodestar.  COAH would determine prior obligations and present need at the municipal level.  There is no direct measure of present need, defined by deficient housing units occupied by low and moderate-income households, so COAH employed seven surrogate measures.  In the Third Round, COAH retained only three measures: housing over fifty years old and overcrowded; lacking complete plumbing; or lacking complete kitchen facilities.  COAH would start its determination of prospective need at the county level, aggregate the numbers to the six COAH regions, and then ultimately allocate the need to the individual municipalities.  Statewide need is determined by aggregating from the obligations of the six COAH regions.  Allocation of prospective need to the municipalities involves determining one “responsibility” factor (labor force needs) and two “capacity” – fiscal (income) and physical (land)) factors.

Along the way, the Court maneuvered between competing expert opinions and past COAH practice.  The court generally sided with past practice, finding the alternatives proposed by experts to be “imperfect and imprecise.”  The Court found that COAH’s Second Round methods were not clearly defective and there were no demonstrably superior alternatives.  The Court also showed restraint and often refrained from entering the realm of policy making, which it argued is better left to administrative bodies.  Ultimately, Court did arrive at a numerical decision, ordering a new construction obligation for Princeton to be 753 Units and a new construction obligation for West Windsor to be 1500.  These numbers were more than what the municipalities sought, but less than what housing advocates had hoped for.

At Griffin Alexander, we can help you understand how affordable housing obligations are implemented in New Jersey and how we can help you navigate your responsibilities. 


The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.


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