On January 18, the Supreme Court of New Jersey in In re Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court's Decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) ruled that the housing need for low- and moderate-income families for the period 1999 to 2015 cannot be ignored and must be included in municipal affordable housing obligations.
At issue in In re Ocean County was whether the affordable housing need during the time period that the Council on Affordable Housing (COAH) failed to perform its required mission – 1999 to 2015, also known as the "Gap Period" – should be counted in municipal affordable housing obligations, and if so, in what manner that need should be calculated. Last February, an Ocean County Superior Court judge ruled in favor of affordable housing advocates, holding that municipal affordable housing obligations, which historically contained three components (prior-round need, present need and prospective need), had to include the Gap Period as a separate and distinct component of affordable housing obligations. However, that decision was reversed by the Appellate Division in July, holding that the Gap Period could not be a separate component as the New Jersey Fair Housing Act permitted prior-round need, present need and prospective need only in calculating municipal obligations. In a closing paragraph of its decision, the Appellate Division noted that the opinion should not be read as to completely ignore the Gap Period.
In an interesting interpretation of the Appellate Division decision, the Supreme Court affirmed the Appellate Division in holding that the Gap Period need cannot be ignored. The Supreme Court also affirmed and modified the Appellate Division decision to specifically provide that the affordable housing need during the Gap Period be counted as part of "present need." By doing so, the Supreme Court acknowledged that it was modifying the historical COAH definition of "present need," but stated such modification was necessary to ensure that the Gap Period is not improperly ignored and is included as part of a town's affordable housing obligation.
The impact of this decision will be far-reaching throughout the state for the many towns that have not settled with the Fair Share Housing Center. This Supreme Court decision coupled with the prior trial court decisions of Judge Wolfson on methodology – the manner in which affordable housing obligations are calculated – will likely lead to affordable housing obligations higher than desired or expected by municipalities and closer to the Fair Share Housing Center's projections.
The focus will now be on the pending trial involving Mercer County towns and upcoming trials throughout the state that will deal with the specific affordable housing obligations for many towns.
Should you have any questions concerning this decision or the status of the affordable housing litigation in general, please contact Craig M. Gianetti.
Luke Pontier and Nicole Magdziak co-authored an article, "A Cautionary Tale of Orphan Signature Pages," published in the Fall 2019 issue of Dimensions, a newsletter of the New Jersey Builders Association.
On January 17, Craig Gianetti and Justin Hannan will be speaking on a panel, "Low Income Housing Tax Credits and Opportunity Zones: Synergies and Conflicts," at the 2020 Economic Leadership Forum, produced by the New Jersey Bankers Association.
On December 11, Craig Gianetti will be speaking at "The Land Use Institute: Mt. Laurel and Other Hot Topics," a program presented by the New Jersey Institute for Continuing Legal Education (NJICLE) in cooperation with the New Jersey State Bar Association (NJSBA) Land Use Section and the New Jersey Chapter of the American Planners Association.
On October 25, Christopher Stracco and Katharine Coffey co-presented a webinar for the New Jersey Institute of Continuing Legal Education (NJICLE), entitled "The Legal Aspects of Electronic Billboards and Signs."
Katharine Coffey and Peter Wolfson are serving as the organizers of Redevelopment Planning Law, a two-day course presented by the New Jersey Redevelopment Authority Redevelopment Training Institute (NJRA-RTI) that will be held on October 23 and 24 at Kean University in Union, NJ.
Craig Gianetti is featured in a Market Forecast special section in the January 2020 issue of Real Estate New Jersey.
Day Pitney LLP announced today that April F. Condon has joined the firm as a partner in the Real Estate and Environmental group in its Stamford office. She joins from Robinson & Cole LLP.
Day Pitney Press Release
Firm Ranked Tier 1 Nationally for Energy Law and Trusts and Estates Law
Day Pitney Press Release
Craig Gianetti, a partner in Day Pitney's Real Estate & Land Use group, has been elected to serve as Vice Chair of the Land Use Law Section of the New Jersey State Bar Association (NJBSA).