Affordable housing advocates celebrated the ruling and alleged the lawsuit was an attempt by towns to shirk their affordable housing responsibilities. (Courtesy of the Department of Community Affairs)
A Superior Court judge declined to pause the implementation of an overhaul of New Jersey’s affordable housing system passed last spring, roundly rejecting a challenge from towns that argued they would face harm if a law they claim is unconstitutional was allowed to take effect.
Judge Robert Lougy on Thursday found the 26 towns that sued to invalidate the law failed to show they would be irreparably harmed by its enactment and did not demonstrate they were likely to succeed at trial.
The defendants’ alleged harms are outweighed by the benefit the law could create for the public writ large, he added.
Affordable housing advocates celebrated Lougy’s ruling and alleged the lawsuit was an attempt by towns to shirk their affordable housing responsibilities.
“This lawsuit is a thinly veiled political statement attempting to revisit arguments that failed in the legislative process,” said Adam Gordon, executive director of the Fair Share Housing Center, which intervened in the case to defend the law.
The towns said they would appeal Lougy’s decision and expand its suit to include a challenge to guidance issued by state court officials that require municipalities’ affordable housing plans to be reviewed by the Fair Share Housing Center.
“No one court decision will affect our resolve to continue litigating this matter as far as necessary to protect our communities from forced urbanization,” Montvale Mayor Mike Ghassali said in a statement.
The law in question amended the 1985 Fair Housing Act to implement the Mount Laurel doctrine — constitutional case law that requires municipalities to provide real opportunities for the creation of affordable housing within their borders — and move administration of the state’s affordable housing system mostly out of the courts’ purview.
The law, which ended the defunct Council on Affordable Housing, requires New Jersey municipalities to file resolutions adopting their affordable housing obligations by Jan. 31, and they must submit affordable housing plans to the state by June 30.
It grants towns that meet those deadlines immunity from exclusionary zoning lawsuits that could force development without approval from local governing bodies.
Its provisions do not require municipalities to participate in the affordable housing program. They could steer clear, Lougy noted, but would then be required to take on the costs of defending against exclusionary zoning suits.
The plaintiffs argued that the loss of immunity, legal exposure, and possible loss of planning control effectively requires they participate in the system created by the law, but Lougy disagreed, finding towns that eschew it would be no worse off than they would have been before the law’s enactment.
“Municipalities that decline to participate in or fail to comply with the Act’s processes and deadlines are no worse than if the political branches had done nothing,” he wrote, later adding, “In other words, the consequences flow not from the legislation but from the continuing constitutional command of Mount Laurel.”
He further found the municipalities lack standing to challenge the law on equal protection grounds central to their claim. They argued a provision that exempts roughly 60 towns — called qualified urban aid municipalities — from certain future affordable housing obligations is unconstitutional. The economic and demographic conditions that spurred the exemption’s creation roughly four decades ago no longer exist, the towns argued.
Though the list of urban aid municipalities is composed largely of urban centers with relatively low median incomes like Camden, Newark, and New Brunswick, some more affluent towns like Montclair are kept on the list due to language in the state budget.
Lougy further found the towns failed to show they are likely to prevail on claims that the law’s creation of a court-administered affordable housing dispute resolution program violates the separation of powers by vesting the judiciary with powers that ought to be left with the executive branch.
“The Constitution does not forbid the Legislature from assigning certain functions to the Judiciary when doing so does not impair the essential integrity of the Executive or Judicial branches of government,” he wrote.
The case continues despite Lougy’s decision against pausing the law. The court is due to hear oral arguments on motions to dismiss filed by the state and the Fair Share Housing Center on Jan. 31.
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