Ruling could yield more N.J. affordable housing

In a ruling that may prove influential across New Jersey, a judge in Ocean County has concluded that municipalities must zone for the affordable housing projects they did not build over the last 15 years.

"The court finds that municipalities are constitutionally mandated to address this obligation" as spelled out in the 1985 Fair Housing Act, Superior Court Judge Mark A. Troncone wrote in an opinion handed down Thursday.

Troncone's ruling does not establish legal precedent outside Ocean County. If adopted in other jurisdictions and upheld on appeal, it could lead to municipalities statewide having to accommodate tens of thousands more affordable housing units over the next decade than many claim is their obligation.

Since March, the 15 Superior Court vicinages have been charged with reviewing and certifying the Mount Laurel-type affordable housing plans of all municipalities within their jurisdictions.

Hundreds of municipalities are seeking to convince judges that their obligation to create affordable housing evaporated between 1999 and 2015, when the state Council on Affordable Housing failed to devise an acceptable formula for calculating those obligations.

Troncone rejected that argument, saying, "The court is satisfied there exists a rational methodology to calculate and determine the affordable housing need which arose the during the 'gap period' between 1999 and 2015."

His ruling appeared to be a setback for a coalition of more than 200 municipalities that last year hired Econsult Solutions Inc. of Philadelphia to devise a method for determining their past and future housing obligations.

Additionally, Econsult calculated that the state's 565 municipalities needed to build 37,000 affordable housing units over the next 10 years.

The Fair Share Housing Center, a nonprofit advocacy group with special intervenor status in Mount Laurel cases statewide, petitioned Troncone to reject Econsult's position.

"It was a ridiculous position," Kevin Walsh, its executive director, said Friday. "It goes against established law."

Fair Share's planning consultant calculated last year that when gap obligations are figured in, municipalities will be obliged to build 202,000 units by 2025. Troncone did not endorse that number but instructed both sides to develop a method for calculating municipal obligations.

The task of overseeing Mount Laurel housing cases fell to Superior Court in March when the state Supreme Court declared that COAH, which was charged with implementing the Fair Housing Act, had grown "moribund" under the Christie administration.

It directed all municipalities to develop new fair housing plans and submit these to the court by year's end for review and certification.

Walsh, who is also Fair Share's lead attorney, predicted that Troncone's ruling on the gap obligation would carry weight because "many other judges have been explicit on the bench that they are waiting for this decision."

He noted that Troncone relied heavily on the advice of a court-appointed master, planner Richard Reading of Princeton, who is advising judges in six other vicinages.

Ed Purcell, counsel for the New Jersey League of Municipalities, viewed Thursday's ruling as less momentous.

"At the end of the day, this is just a trial court decision. Ultimately, every other trial judge has to make a determination, and this decision in Ocean County is not binding on them," Purcell said. "We look forward to seeing what those other judges will decide on these issues."

The league did not underwrite the Econsult report but agrees with its position that towns do not have a "retrospective" obligation for the gap period, only for present and future needs.

Michael Darcy, the league's executive director, said his organization believes strongly that 15 Superior Court judges should not be making affordable housing policy.

"We've said from the start that this is not a good way," Darcy said, "and that it would be much better to have the Legislature decide this on a statewide basis."

doreilly@phillynews.com 856-779-3841