N.J. affordable housing obligations could double with appeals court ruling

A New Jersey appeals court is deciding whether municipalities are responsible for building affordable housing units that would have been required at a time when the agency tasked with enforcing the Fair Housing Act was not functioning.

From 1999 to 2015, the Council on Affordable Housing failed to assign affordable housing obligations to New Jersey towns and cities. Many towns continued to build affordable housing, while others cut back on construction.

Now a three-judge panel is considering whether towns and cities should honor obligations that COAH would have assigned them — had it been functioning properly.

“Towns are willing to do what they have to do to comply. Just give us a reasonable standard,” said Jeffrey Surenian, an attorney representing a group of nearly 300 municipalities.

Gov. Chris Christie recently dissolved COAH, and the responsibility of deciding municipalities’ affordable housing obligations fell to local courts.

Earlier this year, in the first such ruling, a Superior Court judge ruled that several Ocean County towns would have to take into account the “gap period” of 1999-2015 when calculating their future affordable housing obligations. Surenian and others are now challenging that ruling in the state’s appellate division, claiming it is unfair to retroactively foist those obligations on municipalities.

“Don’t tell us we have an obligation to create a realistic opportunity for affordable housing and then give us numbers that are patently unrealistic,” he said.

Advocates claim the Fair Housing Act was explicit in its requirement that cities and towns are required to provide their “fair share” of affordable housing for low- and middle-income residents, and municipalities cannot claim ignorance just because COAH dropped the ball.

“Over two decades now, the law has been clear that municipalities don’t get away with meeting their housing obligations by doing nothing,” said Kevin Walsh, associate director of the Fair Share Housing Center, the Cherry Hill-based advocacy group. “The argument that ‘time has passed, oh well, give us a pass,’ is one that has always been rejected.”

Walsh estimated that New Jersey municipalities will be obligated to build more than 100,000 units of affordable housing for the period from 2015-2025.

He said another 100,000 units would be required to cover the “gap period” as well, potentially doubling the number of affordable housing units to be constructed in the state over the next decade.

A report commissioned by the group of municipalities earlier this year estimated that New Jersey would need 37,700 new units of affordable housing over the next 10 years, far fewer than the FSHC has projected.

Judge Marie E. Lihotz, who led the three-judge panel, said the justices would do their best to “expedite” their ruling.