Published September 26, 2013
By Salvado Rizzo

TRENTON — The state Supreme Court clamped down on New Jersey’s cities and suburbs today, increasing the minimum number of affordable-housing units they must build for their poorest residents and giving the state five months to come up with a plan.

In issuing a 3-2 ruling, the high court strengthened a pair of landmark decisions that have come down since 1975 to prevent housing discrimination, and dealt a setback to Gov. Chris Christie and a group of mayors who had sought more flexibility for municipalities.

At the heart of the issue was the high court's "Mount Laurel" doctrine, crafted decades ago after civil rights advocates complained that the South Jersey community was driving out black residents in rural areas by developing unaffordable homes.

The justices outlawed those "exclusionary zoning" practices in 1975, and in 1983 ordered every New Jersey municipality to provide low-cost housing options for their poorest residents at the same time that they developed bigger homes or larger office parks.

The New Jersey high court was the first one to do so in the United States.

In the latest chapter of the nearly-four-decade legal battle, attorneys for Christie and the mayors argued that towns could be trusted to provide enough affordable homes under looser guidelines approved by a state agency in 2008, which in some cases freed them from building any low-cost units.

But the Fair Share Housing Center and the NAACP, among a dozen other advocacy groups, argued that such leeway would again open the door to discriminatory housing policies by towns seeking to attract wealthier residents, as happened in the 1960s.

A divided Supreme Court agreed.

In an opinion written by Justice Jaynee LaVecchia, the majority ordered the Council on Affordable Housing — a mostly dormant state agency that has only met once in the last two years — to issue stricter rules for towns within five months.

And those rules, the court added, must require towns to build a specific number of minimum homes for their poorest residents, as was the case from 1985 to 2008.

"A remedy must be put in place to eliminate the limbo in which municipalities, New Jersey citizens, developers, and affordable housing interest groups have lived for too long," LaVecchia wrote.

The justices upheld a state appellate ruling that had rejected a formula known as "growth share," which COAH approved in 2008 as an alternative for towns to meet their obligations. But critics contended that as long as municipalities didn't grow, they got a pass on building affordable homes.

Justices Helen Hoens and Anne Patterson dissented from the majority, saying New Jersey had changed since 1983 and that there was enough room in the court’s old Mount Laurel mandates to grant the state the flexibility it sought.

LaVecchia, joined by Justice Barry Albin and Judge Ariel Rodriguez, disagreed: "Those are questions for policymakers — should our Legislature choose to address the topic."

Studies show that 36,000 to 60,000 affordable homes have been built in the last three decades, although the program has been stalled in recent years amid concerns about COAH.

Catherine Weiss, the attorney for groups including New Jersey Future and the Housing and Community Development Network of New Jersey, said COAH’s rules had led to a "lost decade" for low-income families in a state with "growing homelessness" and "the highest housing costs in the nation."

"If the town can afford to build a big mall, it needs to be able to create housing for the people who work at the mall, same for a factory, same for an office park," Weiss said. "We need to be creating inclusive communities where people can live, work and educate their children."

Mayor Janice Mironov of East Windsor, president of the state League of Municipalities, had argued for the looser rules, saying mayors needed more leeway on placing affordable housing units. But she acknowledged that the latest COAH rules "were not realistic, and in many ways they were arbitrary and not logically based."

Mironov called on the Democratic-controlled Legislature and Christie to "put passions aside" and go back to the drawing board together.

"We’ve made lawyers rich and planners rich," she said. "We’ve got money sitting in housing trust funds, money that could be stimulating the economy, and instead there were a wide variety of philosophies on the issue. We didn’t come together to provide for a common-sense grounded and workable program."

While the governor has called the Mount Laurel mandate "an abomination," a spokesman today declined to comment.

Civil rights groups and advocates for low-income and minority residents gathered at the Statehouse today, praising the ruling as a "tremendous victory" that ensures diversity and affordability.

"It’s going to result in more homes getting built, which is especially important after Hurricane Sandy," said Kevin Walsh, associate director of the Fair Share Housing Center, adding that affordable housing benefits "veterans returning from Iraq and Afghanistan, who need a supportive environment to live but who too often are excluded from many of the state’s wealthier communities by their zoning."

Michael McNeil, housing chairman of the New Jersey NAACP, said it was "a tough night last night."

"We thought we were going to go back 40 years," he said. "But apparently it turned out very well."

Chief Justice Stuart Rabner and Judge Mary Catherine Cuff, who is temporarily filling a court vacancy, did not participate in the case.

Peter Reinhart, an affordable housing expert at Monmouth University, said he served on COAH for 10 years but was removed by Gov. James McGreevey in 2004 for opposing the "growth share" formula. In the end, Reinhart said, affordable housing benefits not just the poor but middle-income families as well.

"Talk to the average suburban family, and if you were to ask them, ‘If you bought your house 20 or 30 years ago, could you afford to buy your house today? Many of them would answer no," he said.

The real task now, said Reinhart, is for lawmakers and Christie to strike a grand bargain on affordable housing that fixes what has become a bureaucratic mess at COAH.

"If you tell people you have five months or the world will end, they’ll get it done," he said. "I think it could be done. Will it be done? I’m skeptical."