Update Judge rules against Ocean County towns in closely watched affordable housing case

A judge in Ocean County has ruled against a group of municipalities seeking to scale down their affordable housing obligations, as other towns and cities across the state work to get a handle on their own requirements under pressure from the state judiciary.(Editor’s note: This report was updated at 7 p.m. with additional comments from Kevin Walsh of the Fair Share Housing Center.)

A judge in Ocean County has ruled against a group of municipalities seeking to scale down their affordable housing obligations, as other towns and cities across the state work to get a handle on their own requirements under pressure from the state judiciary.

Stakeholders say the decision could have implications for those other municipalities, which were ordered last March by the state Supreme Court to prepare plans in line with the state’s 31-year-old fair housing law. In doing so, the high court stripped the controversial Council on Affordable Housing of its duties after years of litigation and turned them over to the lower courts.

This week’s decision by Superior Court Judge Mark Troncone, sitting in Toms River, concerned the so-called gap years from 1999 to 2015, in which COAH failed to produce affordable housing guidelines that weren’t challenged in court.

According to Thomas Carroll, land use counsel for the New Jersey Builders Association, the Ocean County municipalities were seeking to reduce their obligations from that period by about 60 percent because the requirements were never clearly established.

In a posting on the NJBA website, Carroll wrote that Troncone disagreed with the municipalities, ruling they “must provide for satisfaction of the gap year need, as well as their prior round need, the present need and their prospective need.” 

With that, he said, Troncone largely accepted the arguments made by the NJBA and the Fair Share Housing Center, an advocacy group that has led the charge for municipalities to allow development of new low- and moderate-income housing.

“Judge Troncone’s rulings are technically binding only within Ocean County,” Carroll, a partner with Princeton-based Hill Wallack LLP, wrote Friday. “However, a number of judges throughout the state have indicated that they were awaiting Judge Troncone’s rulings on the ‘gap year issue,’ and it is hoped that the decision will effectively put an end to municipal efforts to avoid satisfaction of some 60 percent of their third-round fair share obligations. 

“There will be further proceedings on fair share issues in the Ocean County cases and elsewhere, but Judge Troncone’s opinion goes a long way toward the establishment of statewide fair share obligations that municipalities must meet through their fair share plans.”

The decision issued Thursday concerned 13 Ocean County municipalities that sought to present their affordable housing plans in the wake of last year’s Supreme Court ruling. According to court documents, the towns argued that a municipality’s “fair share obligation” under the Fair Housing Act of 1985 includes only present and prospective need — and that trying to now account for the gap period would result in some degree of double counting.

Attorneys for the municipalities also argued there is no way to accurately calculate the gap need and that the court had no authority to do so. They also said trying to make up for any unmet need during those gap years would result in a wave of development that would overburden the towns.

But the court ruled that the gap period need must be “calculated as a separate and discrete component of a municipality’s fair share obligation,” along with a municipality’s unmet need from prior “rounds” of COAH guidelines — from 1987 to 1999 — and present need and future needs.

Troncone, however, also ruled that the gap obligation may not push the municipalities’ overall requirements over 1,000 units for the current round when combined with present and prospective need, alluding to a cap spelled out by the Fair Housing Act. To that end, he wrote that the municipalities may petition the court during its review of their individual plans to defer up to 50 percent of their gap obligations to the subsequent round, which begins in 2026.

Kevin Walsh, associate director of the Fair Share Housing Center, called it “an extremely important decision” because it reinforces the state’s existing affordable housing law as a road map for the obligations going forward.

“While it’s a very significant decision, what the decision simply does is recognize that it’s a clear law that’s already in place,” Walsh said, noting that it was important to have a ruling on the contentious issue of “gap year” obligations.

“I’d say that it’s removing the biggest arrow from the town’s quiver of exclusion,” he said.

Walsh echoed Carroll’s belief that the ruling has statewide implications, even if it only applies to Ocean County.

“Very often, judges defer to other judges,” he said. “It’s certainly not ironclad, but if nothing else, it’s something the judges have to consider.”