By Frank Mustac, Special Writer
An affordable-housing court case decided on Monday that potentially affects hundreds of municipalities in New Jersey, including Hopewell Township, may wind up in the state Supreme Court.
The Superior Court Appellate Division on July 11 “ruled that municipal affordable housing obligations do not include a separate and distinct ‘gap period’ calculation,” read a statement issued this week by the New Jersey League of Municipalities, one of the litigants in the case.
The appellate ruling overturns a decision issued in February by a Judge Mark Troncone in Ocean County. Judge Troncone’s ruling concerned the “gap period,” a stretch of 16 years from 1999-2015, when no affordable housing regulations were approved by COAH or approved by the courts, according to Michael W. Herbert, an attorney for Hopewell Township.
COAH is an acronym for the Council on Affordable Housing, a state agency.
Barnegat Township in Ocean County was the primary litigant in challenging Judge Troncone’s ruling before the Appellate Division.
Had Judge Troncone’s stood, it would have meant, essentially, that the number of housing units for low-and middle-income buyers that towns in Ocean County and throughout New Jersey would be constitutionally obligated to provide could increase substantially.
The ruling, had it stood, would also “have set a dangerous precedent, potentially forcing municipalities statewide to build more than 100,000 new housing units in just nine years,” read part of a statement from state Sen. Christopher “Kip” Bateman.
The decision on Monday from the Appellate Division gives municipalities in New Jersey “a significant victory as they work through the court ordered process to establish their affordable housing obligations,” said Sen. Bateman, a Republican who represents a portion of Mercer County as part of the16th Legislative District.
Mr. Bateman is one of the primary sponsors of bill (S-2254) introduced in the state Legislature in late May in response to the “gap period” ruling by Judge Troncone.
The bill provides clarification that “municipalities cannot be forced to meet retroactive affordable housing requirements, specifically because the Fair Housing Act does not impose such requirements,” according to information published on the website of state Sen. Bateman.
An identical bill (A3821) was introduced in the state General Assembly.
“We are pleased to see this common-sense ruling by the appellate division,” said Hopewell Township Mayor Kevin Kuchinski. “It affirms that a municipality’s third-round affordable housing need is the sum of the present and prospective needs for a 10-year period, as originally set forth in the Fair Housing Act. Hopewell Township has taken good-faith steps towards meeting its affordable housing obligations, and will continue to work to meet future needs, while protecting the Township from over-development and preserving its rural character.”
Hopewell Township’s attorney Steven Goodell said at the June 27 Township Committee meeting that he expects the Appellate Division’s decision will be appealed to the state Supreme Court by one of the parties opposing the decision.
“That is something that the Supreme Court may or may not choose to hear,” Mr. Goodell said.
Two of the parties that argued in the Appellate Division to uphold Judge Troncone’s Ocean County ruling are the New Jersey Builders Association and the Fair Share Housing Center, a non-profit affordable housing advocacy organization.
