By Philip Sean Curran, Staff Writer
Towns around New Jersey will need to factor in low- and moderate-income housing needs from 1999 to 2015 into meeting their “present” needs, the New Jersey Supreme Court ruled Wednesday., The court, in a 32-page unanimous decision, found that municipalities did get a “hiatus” from their constitutional mandate to provide housing opportunities during the 16-year-period when the state Council on Affordable Housing was unable to provide communities with regulations on what their housing obligations were. There were no so-called “Third Round” rules during that time., The ruling is the latest attempt by the high court to set housing policy in the state, flowing from its landmark Mount Laurel decisions that said towns have a constitutional responsibility to make housing opportunities available, to low- and moderate-income people, through municipal “zoning power.”, The high court got involved this time around when 13 Ocean County towns sought a judge’s ruling on what their affordable housing requirements were, rejecting the idea that they had a past need to fulfill during the gap period from 1999-2015 when no COAH regulations were in place. Others disagreed, including the New Jersey Builders Association and the Fair Share Housing Center, an advocacy group. A trial court initially ruled against the towns, while an appeals court overturned that ruling and set the stage for arguments before the Supreme Court last fall., “There is no fair reading of the Court’s prior decisions that supports disregarding the constitutional obligations to address pent-up affordable housing need for low- and moderate-income households that formed during the years in which COAH was unable to promulgate valid third round rules,” the Supreme Court said in a decision by Justice Jaynee LaVecchia., The decision modified but otherwise upheld the appeals court ruling., “We now modify the Appellate Division judgment to make express what is necessary in order to properly assess fully the pent-up affordable housing need of low- and moderate-income New Jersey households created during the gap period,” the court said. “We hold that, in determining municipal fair share obligations for the Third Round, the trial courts must employ an expanded definition of present need. The present-need analysis must include, in addition to a calculation of overcrowded and deficient housing units, an analytic component that addresses the affordable housing need of presently existing New Jersey low- and moderate-income households, which formed during the gap period and are entitled to their delayed opportunity to seek affordable housing.”, Courts around the state have enforcement power over towns., In a state Supreme Court decision from March 2015, the high court had deemed COAH defunct and shifted responsibility of enforcing affordable housing requirements to trial courts. Princeton, for example, is one of the Mercer County towns that are in the middle of trial, before a Superior Court judge, to determine what their obligations are., As part of Wednesday’s ruling, Justice LaVecchia wrote that those lower courts have to ensure that present housing needs are not “calculated in a way that includes persons who are deceased, who are income-ineligible or otherwise are no longer eligible for affordable housing or whose households may be already captured through the historic practices of surveying for deficient housing units within the municipality.”, In a statement Wednesday, an affordable housing advocacy group hailed the decision., “This decision clears away one of the main obstacles remaining in the fight for fair housing in New Jersey. The towns who were fighting in court are outside the mainstream and now know that they will not be rewarded for further obstruction and delay,” said Kevin Walsh, executive director of the Fair Share Housing Center, who also argued the case before the high court., Mike Cerra, assistant executive director of the New Jersey State League of Municipalities, said Wednesday that the high court had tried to strike a “middle ground.” His organization was intending to issue a statement on the ruling.
