Middlesex County Judge Douglas Wolfson Issues First Trial Court Decision Confirming Affordable Housing "Gap" Need
October 11, 2016In 1985, in the wake of the two seminal "Mt. Laurel" decisions, the NJ Legislature established the Council on Affordable Housing (COAH), to assess, every six years, how much housing poor and lower-middle-class people need in New Jersey, and whether towns are impeding that construction through zoning abuse.
Accordingly, in 1986 COAH set municipal obligataion "numbers" and compliance rules for 1987-1993 and revised them in 1994 (a year later), for 1987-1999. The need accumulated, since it was not fully met in each period.
In 1999, the cycle length had been extended from six years to ten, so COAH was supposed to address 1987-2010. But neither then, nor again in 2010 when it was supposed to address the 1987-2020 accumulated need, did COAH issue valid rules. In 2015, our Supreme Court finally found COAH unworkable, and ordered the lower courts to resume administering the constitutional obligation.
That order renewed Mt. Laurel litigation, statewide, and some towns began to claim that all of the housing need accumulated in the "gap" between 1999 and 2015 should be ignored. If it were, tens of thousands of poor and lower-middle-class households would be permanently barred from exclusionary towns.
To date, two trial courts have refused to countenance this move, and no trial court has agreed with it. However, on July 11, 2016, the Appellate Division said that while the "identifiable" need that had arisen between 1999 and 2015 would have to be met, the law did not permit this need to be treated as a separate category. Towns trumpeted this as confirming that this "gap" need would never count at all. On September 8, our Supreme Court stayed the Appellate Division decision.
On October 5, Judge Douglas Wolfson, the trial judge hearing the Middlesex County Mt. Laurel cases, issued a decision explaining why the "gap" need must be addressed, and how to calculate it, even taking the Appellate Division's decision into account.
Judge Wolfson has long familiarity with the planning and demographic considerations that determine how much low-and-moderate-income housing is needed. If his decision holds, and, in particular, if it proves persuasive to other trial judges around the state, towns will have to plan for numbers at least approaching New Jersey's true housing need. If the "gap" need is ignored, resulting municipal "obligations" will fall by as much as 2/3, though the underlying need will not fall.
With the Supreme Court set to hear argument in November, and with county-level trials taking place in the meantime, all New Jersey landowners should stay in close touch with knowledgeable counsel to monitor developments.