Brick Township could be forced to use its zoning power to add as many as 1,000 affordable housing units in town if a judicial ruling from last week stands.
Brick was one of several Ocean County municipalities to be covered under the first judicial ruling on affordable housing since the state Supreme Court ruled that trial judges would have to certify new affordable housing plans submitted by municipalities under the so-called Mount Laurel doctrine.
The decision by Superior Court Judge Mark A. Troncone, released late last week, rejected the argument from the municipalities that, because the state never adopted affordable housing quotas between 1999 and 2015, there was no obligation to have created units during those years. Troncone ruled that municipalities would be responsible for whatever units would have been required during that time period as well as whatever the next round of quotas would require.
“The court is satisfied there exists a rational methodology to calculate and determine the affordable housing need which arose during the “gap period” of 1999 to 2015,” Troncone wrote in his opinion. “The court finds municipalities are constitutionally mandated to address this obligation.”
Municipalities had argued that only the present – not the past 15 years – need for affordable housing should be used in calculating a quota. Their attorneys said that a wave of development could overburden school systems, police department and other municipal services in a state where property taxes are already the nation’s highest.
Troncone ruled that municipalities could defer up to half of whatever turns out to be their final housing quota to 2026, when the next round of quotas are to be set.
Under the Mount Laurel doctrine, which stems from a 1975 state Supreme Court case that centered on the Camden County town, the court ruled that New Jersey municipalities must affirmatively use their zoning power to create housing that is affordable for low and moderate income residents. Future policies related to the case allowed what became known as “builder’s remedy” lawsuits, where commercial real estate developers could sue for the permission to violate local housing density and similar ordinances to build affordable units if a municipality had not met its quote.
In addition to the Fair Share Housing Center, which brought the original case, several developers were represented in the most recent hearings.
Troncone’s ruling, which only affects Ocean County, capped the number of affordable units that could be required for each municipality at 1,000. The Fair Share Housing Center had estimated Brick had the obligation to provide about 1,500 units of housing. The township had hired a planning firm to dispute the advocacy group’s calculations. Statewide, the group estimated a need for 202,000 more units of affordable housing, while the consultant, Econsult Solutions, found that only 37,000 were needed.
The case will undoubtedly be appealed, though legal experts have said there is a good chance the ruling will be more widely adopted in the coming months. Many judges elsewhere in the state had been waiting for the Ocean County case to be resolved.
The 1,500 unit figure is “outrageous,” Mayor John Ducey has said.
“We don’t need any, we don’t want any,” Ducey said at a recent meeting of the township council.