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January 18, 2017
Trenton, NJ
League Statement on Supreme Court "Gap" ruling
Today the New Jersey Supreme Court in a unanimous but
nuanced ruling affirmed but modified the Appellate Division’s July 11
decision, which reversed a lower court’s misinterpretation of the Fair
Housing Act by assigning a new and unrealistic affordable housing
obligation on municipalities.
This is a complicated decision, which will be discussed
and debated for months to come. But there are some readily made
observations:
- The Supreme Court affirmed but modified the Appellate
Division ruling. In doing so, the Court further expanded the Mount
Laurel doctrine to include a new obligation on municipalities, which
will be folded into present need. The Court wrote:
“…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.” (Page 31 of decision.)
- At the same time, the Court rejected the arguments of
certain housing advocates and developers to further expand the “gap”
obligation and double count certain households. The Court wrote,
“The trial court must take care to ensure that the
present need is 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 practice of surveying for deficient housing units
within the municipality.” (Page 31 of decision.)
- The Court ruling, however, has added to a very
complicated, process, which will require the expenditure of further
resources at the local level. The court in this decision once again
invited the Legislature to revisit the issue and provide necessary
reforms.
The so-called “gap” period does not result from any
failures of local government. This “gap issue” arises out of COAH’s
inability to promulgate third round regulations from 1999 to the
present or make any final determination as to state and regional
housing need, as well as constant litigation by certain groups The
Fair Housing Act defines a municipal obligation to include present and
prospective need, and when it has developed a plan to address both
those needs, a town should be deemed compliant and allowed to
proceed.
League Executive Director Michael J. Darcy, CAE offered the following comment:
“While the Supreme Court attempts to forge a middle
ground, this decision is vague as to how to determine this additional
present need obligation. Thus, the ruling provides little guidance
and will likely result in additional property tax resources being
expended. We again call upon the Administration and Legislature to
craft long-overdue reforms and promulgate a reasonable, rational state
housing policy.”
Contact: Email Michael Cerra, Assistant Executive Director or call him at 609-695-3481, ext. 120
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