New Jersey court wrestles with affordable housing after agency doesn't comply with its order

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TRENTON, New Jersey — New Jersey's state Supreme Court is wrestling with how to make sure affordable housing gets built after a state agency failed to approve revised rules toward that end and comply with a court order.

The top court heard arguments Tuesday toward resolving a legal dispute of more than 40 years over the obligations of local governments to provide affordable housing.

The Fair Share Housing Center, representing low-income people, said the court should take over the affordable housing system since the state Council on Affordable Housing failed to adopt regulations in October despite a court order to do so.

Lawyers for local governments argued for giving the council another chance, but the six justices hearing the case seemed wary.

"How much longer do you want the poor people of this state to wait before they have adequate housing?" asked Justice Barry Albin, who noted that the court has twice given the state deadlines to approve regulations that would set out how many units of affordable housing each town must provide.

In a 1975 landmark case, the court said towns could not use zoning to exclude the poor, such as requiring multi-acre lots everywhere in town. Eight years later, the court went further, ruling that towns had an obligation to provide housing. The court also set up an enforcement mechanism if towns did not do their part. Housing developers could sue for the right to build at higher densities where not normally allowed, in exchange for including some affordable housing.

With about 100 communities facing such lawsuits by 1985, the Legislature set up the council, giving the new agency the authority to grant local governments immunity from lawsuits if they had council-approved affordable housing plans.

Since then, the agency's involvement has led to the development of some 65,000 units of low-income housing but has angered local officials. In recent years, the dispute has focused on council regulations that included each town's affordable-housing obligation.

The council board in October deadlocked over the revised rules, failing to meet the court deadline to satisfy its order.

Deputy Attorney General Geraldine Callahan told the justices Tuesday that the council has not met since October and is not working on revised regulations. But she also said the board did not intend to defy court orders.

Giving his interpretation of the state's position, Fair Share lawyer Kevin Walsh told the judges: "It's fair to conclude that's game over. 'We sort of tried. We're done,' I think is pretty clear is the message coming from the state administration."

A lawyer for Gov. Chris Christie's administration did not offer any solutions, other than saying the council would not willfully defy the court. Christie tried to abolish the agency after he came to office five years ago, but the court said he could not do that.

Lawyers for towns seemed partially resigned to the possibility that affordable housing decisions would return to the state courts, as they did from 1983 to 1985. They spent much of Tuesday making the case that towns that submitted plans to the council in 2008, before the court invalidated the regulations in place at the time, be granted some legal immunity for making the effort.

Chief Justice Stuart Rabner recused himself from the case because he once had a role in the legal dispute when he was state attorney general.


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