Mahwah, Montvale and 11 other municipalities spanning New Jersey have sued Gov. Phil Murphy, alleging he violated the Fair Housing Act and demanding the administration bring back the defunct Council on Affordable Housing, which they said would protect towns from “runaway development” and speed creation of affordable units.
But affordable housing advocates said it was odd for the towns to want to revive an entity that they often stonewalled, prompting lawsuits to get them to meet their housing obligations.
In March 2015, the New Jersey Supreme Court said COAH was “moribund” and non-functioning after the statewide agency tasked with approving towns’ affordable housing plans failed for more than 15 years to adopt updated affordable housing quotas and rules for towns to follow, which stalled construction on affordable units for decades.
The ruling brought the process once overseen by the council into Superior Court: Municipalities would reach settlements with fair housing advocates such as the Mt. Laurel-based nonprofit Fair Share Housing Center, creating judge-approved plans for how towns should zone for affordable housing projects, and where affordable units would be built.
This process protected towns through 2025 from builder’s remedy lawsuits, through which a developer can avoid the municipal approval process and build a project with as many market-rate units as they’d like as long as at least 20% of the units are affordable.
The council has not met since the Supreme Court decision and has taken no actions since 2015, said Lisa Ryan, spokesperson for the Department of Community Affairs, the agency that oversees the council.
The 13 towns that filed the new suit — which also include Chatham, East Hanover, Beach Haven, Bordentown, Cranford, Egg Harbor, Fairfield, Freehold, Jackson, Readington and Sayreville — said that by failing to appoint members to the council’s board, which “effectively disbanded” the agency, Murphy violated the Fair Housing Act of 1985, which created the council.
The lack of a council board “has caused tremendous delays in the creation of affordable housing units throughout the state,” said Mahwah Councilman David May, the affordable housing liaison for the township. “Now would be the perfect time to reestablish COAH ahead of the next housing round. Without COAH, there will only be further delays on providing the necessary housing for those in need.”
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The municipalities want a court order to reconstitute the agency to protect towns “from runaway development while creating actual and livable affordable housing consistent with sound land use planning principles,” the township of Cranford said in a press release.
“Cranford’s and New Jersey’s residents, including the very families who need affordable housing, have been left at the mercy of an overburdened court system that real estate developers exploit to push through large oversized projects,” the Cranford release said, referencing a plan by Hartz Mountain Corp. The original proposal was a 900-unit apartment complex, but has since evolved into a commercial area of retail and warehouse space and a 250-unit apartment complex, with 38 affordable units.
Murphy’s office declined to comment on the litigation, and did not answer questions about whether the governor had any plans to reconstitute the council.
The Fair Share Housing Center said the council was “dysfunctional” and “did nothing” for 15 years.
“Towns that want to go back to that system want to circumvent their constitutional affordable housing obligations and keep out low-income people and people of color from their towns,” said Alex Staropoli, director of advocacy and communications for the center.
“Some of the towns in the lawsuit never filed fair share plans and others have been repeatedly sued for violating their agreements,” Staropoli said. “Towns that want to avoid their affordable housing obligations want to maintain New Jersey’s residential segregation. It’s that simple.”
Staropoli said it was “strange” to see that towns want to bring back the council, since many of them “never even engaged with it and in many cases didn’t meet their obligations until they were sued, or at all.”
Five of the towns listed in the lawsuit submitted fair share housing plans to the council in a final “third round” before the agency stopped meeting, according to tracking by the Fair Share Housing Center. They include Chatham, East Hanover, Mahwah, Montvale and Readington.
Bordentown, Fairfield, Freehold and Jackson voluntarily filed in court instead of COAH. Egg Harbor did not adopt a fair share plan until Fair Share Housing Center sued, and Cranford faced a builder’s remedy suit after not participating in the COAH process. Beach Haven and Sayreville did not file with COAH or the courts.
A series of pivotal state Supreme Court cases created the Mount Laurel doctrine, which said municipalities must zone and create a “fair share” of affordable housing for low- and moderate-income families, which typically means a household that would spend a third of its monthly paycheck on housing expenses.
As many as 70,000 affordable homes could be built in the next decade through the court settlement process, the Fair Share Housing Center estimates. But the Garden State lacks an estimated 200,000 rentals for extremely low-income renters, according to a report from the National Low Income Housing Coalition.
The settlements with Fair Share protect towns from builder’s remedy suits through 2025. On Thursday, the Assembly Housing committee plans to discuss how the process should work after 2025. The public can listen to the hearing at www.njleg.state.nj.us/live-proceedings or visit the Trenton Statehouse at 2:00 p.m.