By Joshua Burd
A coalition of two dozen towns vowed to appeal after a judge denied its request to pause the rollout of New Jersey’s new affordable housing law, in a move that allows state officials to proceed even as the court prepares for additional arguments in the case.
In a ruling issued Thursday morning, Superior Court Judge Robert Lougy rejected the towns’ application for an order that would stay the new program and the accompanying guidelines from the Department of Community Affairs, pending final judgment. The court is now scheduled to hear oral arguments on Jan. 31 on a pending motion by the state and affordable housing advocates that seeks to dismiss the municipalities’ lawsuit altogether, while the plaintiffs said they would appeal the decision among several steps to continue their challenge.
At issue is the high-profile law signed by Gov. Phil Murphy in late March and the ensuing calculations by DCA, which identified a statewide deficit of more than 150,000 low- and moderate-income homes. The estimates, along with individual obligations for New Jersey’s 564 municipalities, were the focus of the lawsuit filed by the coalition in early September, with officials in Montvale leading the charge and arguing the new law imposes excessive mandates without fully considering local conditions and resources.
The plaintiffs on Thursday said they would press on, reiterating their position that they and other towns would unfairly shoulder the burden of some 60 urban and low-income communities that aren’t explicitly required to build new affordable housing.
“No one court decision will affect our resolve to continue litigating this matter as far as necessary to protect our communities from forced urbanization,” said Montvale Mayor Mike Ghassali, speaking on behalf of what’s known as Local Leaders for Responsible Planning.
The framework applies to the fourth round of requirements — essentially a 10-year cycle — under state Supreme Court’s landmark Mount Laurel doctrine that has guided affordable housing policy in New Jersey for decades. According to DCA, that deficit includes 65,410 existing dwellings that need to be rehabilitated and another 84,698 to be built through 2035 by way of planning and zoning by local governments.
Importantly, towns and cities have until Jan. 31 to adopt their individuals numbers or come up with their own, while those that devise their own plan are subject to challenges from developers, affordable housing advocates and other stakeholders through the end of February.
Supporters have touted the law as a means of bringing certainty to a complex, often controversial process that has vexed policymakers for decades, but the Local Leaders for Responsible Planning coalition sued to block the law in early September. Among other grievances, the complaint takes aim at the mediation system established by the law, which calls for having retired judges and other experts resolve disputes between DCA and municipalities that are challenging their affordable housing obligations, calling the program “an unconstitutional structure” that places the decisions in the hands of unelected officials.
In explaining his decision on Thursday, Lougy wrote that the plaintiffs “fail to demonstrate a likelihood of success” based on their legal arguments, while noting that the matter “presents issues of public importance and the public interest weighs against a stay.” He also wrote in the 68-page order that the municipalities “fail to establish any basis to stay the Mount Laurel doctrine pending disposition of this matter.”
“We’re thankful Judge Lougy recognized there’s clearly not enough evidence to put New Jersey’s landmark new affordable housing law on hold,” said Adam Gordon, executive director of the Fair Share Housing Center, who was among those who presented oral arguments at a Dec. 20 hearing. “A delay in building affordable housing, as the lawsuit seeks, would be devastating for working families, people with disabilities, and seniors struggling with record-high housing costs.”
Among other planned legal steps, the coalition said it would pursue an appeal of the judge’s denial of a stay, arguing the towns continue to be irreparably harmed by having to adopt a binding resolution by Jan. 31 and submit to the program’s jurisdiction to avoid the potential loss of their zoning powers.
“The Court held that the Program is optional, which avoided the obvious constitutional violation presented by a court administrator picking so-called ‘experts’ to render affordable housing decisions,” lead attorney Michael L. Collins said in a prepared statement. “Because the municipalities see nothing optional to the January 31, 2025, deadline and corresponding Program process prescribed in the law, they will be pursuing an emergent appeal on this issue.”
The plaintiffs also said they would amend their complaint to challenge recent guidance by the Administrative Director of the Courts, which granted the nonprofit Fair Share Housing Center the authority to review every municipality’s housing plan. They called it “an unprecedented grant of power that not even the Legislature was willing to give” to an advocacy group that has helped shape affordable housing policy in prior rounds, largely by spearheading litigation and zoning settlements between municipalities and builders.
“Our courts are not acting impartially and are actually giving favored treatment to favor Fair Share Housing Center against the municipalities,” Ghassali said. “This proves that the ‘fix is in’ against our communities and no wonder Fair Share Housing Center called the new law the ‘best-in-the-nation.’”
Superior Court sets key date for arguments on new N.J. affordable housing obligations
