Affordable housing takeover – Top court strips NJ officials of control
New Jersey's top court ruled Tuesday that judges should take over the enforcement of state affordable housing requirements because the state government under Gov. Chris Christie and his predecessors has failed to do it.
The 6-0 court ruling was a defeat for Christie, a possible 2016 Republican presidential candidate who has frequently criticized his state's courts as too liberal and who has lost previous court rulings on issues such as pension funding.
Tuesday's ruling is the latest in 40 years of litigation over housing for the poor in one of the nation's most expensive states. The court found that the state is not carrying out the Fair Housing Act, a 30-year-old law designed to carry out previous court rulings.
"We thus are in the exceptional situation in which the administrative process has become nonfunctioning, rendering futile the FHA's administrative remedy," Justice Jaynee LaVecchia wrote for the court. All the justices agreed, except for Chief Justice Stuart Rabner, who did not participate in the case because he worked on affordable housing issues previously as the state's attorney general.
For affordable housing advocates, Tuesday's ruling was as major victory.
"What it means going forward is that there's a process that will provide certainty to developers and towns and lower-income families, most importantly," said Kevin Walsh, the Fair Share Housing Center lawyer who sued the state over enforcement of the rules. "We're optimistic that a lot of housing will be built."
The case goes back to the 1975 Mount Laurel decision, in which New Jersey became the first state where courts declared that towns could not use zoning to exclude the poor. In later decisions, judges went further, ordering towns take steps to allow the chance of housing for low-income people.
Eventually, the state Legislature responded with the 1985 Fair Housing Act, which called for the state to issue new rules periodically laying out how many homes must be provided and giving towns options for how to do it.
The last rules that passed court muster expired in 1999. The court found that the state Council on Affordable Housing has failed to implement fair new rules, despite court orders to do so.
Under Tuesday's ruling, the issue will be taken out of the hands of the administration and handed over to lower-court judges starting in three months. For the first month, judges assigned to the cases will only take applications from towns that can seek protection from lawsuits by asserting that they had tried to have plans under the Council on Affordable Housing.
After that, judges can start considering lawsuits against towns from housing developers seeking to build at higher densities than would normally be allowed as a way to get housing affordable to low- and moderate-income people homes in the towns.
Fair Share had argued that those lawsuits — known as "builder's remedy" claims — should start immediately. Local officials argued that towns should be allowed to gain some protections, and they prevailed on that point.
"This is about the best decision that we could expect from the court," said Brian C. Wahler, the mayor of Piscataway Township and the president of the New Jersey League of Municipalities. "We appreciate the court's recognition that the municipalities should not be punished for COAH's failure to act."
The court also said that the ruling does not prevent either the state Legislature or the administration from coming up with a new way to handle affordable housing administratively.
A spokesman for Christie did not immediately respond to a request for comment.
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