Affordable housing obligations not retroactive, N.J. court says

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The Ethel R. Lawrence Homes was the first affordable housing complex built in the suburbs under the Mt. Laurel Doctrine. (Mark Lozier/Fair Share Housing Development)

The Ethel R. Lawrence Homes was the first affordable housing complex built in the suburbs under the Mt. Laurel Doctrine. (Mark Lozier/Fair Share Housing Development)

A N.J. Appeals Court panel ruled Monday that municipalities would not have to include in their affordable housing calculations the years when the Council on Affordable Housing was not functioning.

From 1999 to 2015, COAH did not assign cities and towns affordable housing obligations.

More recently, municipalities have had to present their affordable housing plans to New Jersey Superior Court judges for approval.

Monday’s ruling means that those plans do not need to take into account the 16 years when no obligations were assigned.

The panel said that the Fair Housing Act and previous case law “do not authorize a retrospective new ‘separate and discrete’ affordable housing gap-period obligation.”

In other words, municipalities need to consider only two categories when calculating their affordable housing obligations: current substandard and overcrowded housing and the expected demand for affordable housing over the next 10 years.

“We kind of view this as a puzzle. And now it’s clear from the appellate panel that that piece doesn’t fit in this puzzle,” said Mike Cerra, assistant executive director of the New Jersey League of Municipalities.

“The end result will be that those obligations will likely be far more reasonable and rational.”

Sen. Kip Bateman, R-Somerset, who previously introduced a bill freeing municipalities from any “gap period” obligations, applauded the ruling. Bateman said the ruling protects “taxpayers from a catastrophic Ocean County Court decision that would have caused a ripple effect, decimating municipalities’ statewide.”

By some estimates, the “gap period” obligations would have forced cities and towns to zone for twice what they would have had to zone for using only present and prospective needs, a huge loss or gain depending on your viewpoint.

According to Kevin Walsh, executive director of the Fair Share Housing Center, the ruling hurts low- and middle-income families hurt by the Great Recession, the foreclosure crisis, and the Atlantic City casino closures that occurred during the “gap period.”

Other advocates echoed Walsh’s disappointment.

“Our families, friends and neighbors who might not be counted because of this ruling are the heart of our state and the backbone of our economy,” said Staci Berger, president of the Housing and Community Development Network of New Jersey. “If we can’t afford to live here, we can’t get our economy back on track.”

The ruling may be appealed to the state Supreme Court.

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