Inside Ocean County Government

Legal, Ocean County

Decision Reached In Affordable Housing Legal Battle

Ruling May Pave The Way For More Low-Income Housing Projects Statewide

A ruling handed down last week by the Ocean County Superior Court could have ramifications far beyond Ocean County, after the court ruled that municipalities must build out affordable housing projects that were not zoned in the past 15 years, rejecting arguments from 13 municipalities joined by the New Jersey State League of Municipalities, which filed declaratory judgement actions seeking immunity from additional affordable housing mandates incurred under the New Jersey’s Fair Housing Act.

The legal battle began in the spring of 2015, when the Fair Share Housing Center, an affordable housing activist group, first brought suit, setting the stage for 13 Ocean County municipalities to file suit seeking a declaratory judgement that they have met their housing obligations, and providing them from legal immunity, protecting them from being forced to build out additional units.

Municipalities in the suit included:

  • Barnegat
  • Beach Haven
  • Berkeley
  • Brick
  • Jackson
  • Lacey
  • Little Egg Harbor
  • Manchester
  • Waretown
  • Pine Beach
  • Point Pleasant
  • Stafford
  • Toms River

Affordable Housing Obligations “Much Larger”

The activist group praised the decision.“This ruling shows that towns’ fair housing obligations are much larger than they have been claiming,” Fair Share Housing Center Executive Director Kevin Walsh said.

The ruling dealt significant blow to the assertions made in a report commissioned by the League of Municipalities issued by Econsult Solutions, a Philadelphia based consulting firm. The Econsult report claimed that an acceptable number of affordable housing units would be 37,000 units to be developed statewide over the next decade

The ruling did not set a specific number, but the Fair Share Housing Center argued that 202,000 units of affordable housing should be built by 2025. Troncone’s ruling did not set a specific number of units that must developed, but instead ordered that an appropriate methodology for determining such a number must be developed in accordance with established legal precedents.

Walsh continued “We have been saying for a long time that central provisions of Econsult’s report couldn’t stand up to judicial scrutiny. We are going to continue to fight hard for the right of New Jersey families, seniors and those with disabilities to live in thriving neighborhoods. This ruling is an important step in that fight.”

Since 1999, COAH has attempted to adopt a third round of affordable housing targets, but has failed to do so, leading the state Supreme Court to declare the agency “moribund” and saw the Judiciary take over administration of the Fair Housing Act in New Jersey.

According to Judge Troncone’s ruling, the primary legal question that came before the court was “…whether the court has the authority to impose an obligation upon municipalities to satisfy the affordable housing need which arose from 1999 to the present.”

The answer? Yes, with some catches.

Municipalities will be required to address the affordable housing obligations incurred during the so-called “gap period,” but not beyond the statutory cap of 1000 units including the “present and prospective need” component of their obligation.

Lacey Family Apartments, an affordable housing development planned for Lacey Township.

Lacey Family Apartments, an affordable housing development planned for Lacey Township.

The 13 municipalities unsuccessfully argued that the 1000 unit cap should have been applied to their entire “fair share” obligation rather than just the obligation incurred during the gap period.

NJSLOM Contradicted Themselves

Judge Troncone ruled that the municipalities contradicted themselves, as in a previous case before an appellate court, the New Jersey League of Municipalities argued that a housing need could not disappear. Judge Troncone, however, ruled that municipalities could not change their position after previously arguing it before a court.

“New Jersey courts have ruled a party, who is successful in asserting a position upon which a court bases its decision, may not assert a contradictory position thereafter,” the judge wrote. “Clearly, the Appellate Division relied on representations of [the Council on Affordable Housing] and the municipalities that there would be no gaps when assessing a town’s fair share” during this earlier court proceeding.

Judge Troncone further ruled that municipalities may petition the court to defer up to 50% of their “gap” obligation to the 4th round, rather than the upcoming third round 10 year period.

The decision is not binding outside of Ocean County, however if Judge Troncone’s reasoning is followed by other vicinages it could impact affordable housing development statewide.



“Bridging the Gap” – Special Master Report

Review and Analysis of Report Prepared by David N. Kinsey, PhD Entitled: “New Jersey Low and Moderate Income Housing Obligations for 1999-2025

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