By Joshua Burd
A law to spur the next wave of affordable housing in New Jersey has cleared another legal hurdle after a state Superior Court dismissed a challenge by a coalition of municipalities.
Whether the towns will appeal the ruling by Judge Robert Lougy was unclear this week, but the decision is the latest victory for proponents of the legislation signed by Gov. Phil Murphy last year. And it comes as officials in hundreds of towns and cities, affordable housing advocates and other stakeholders have moved steadily in recent months to implement and comply with the law through zoning and land use planning, seeking to address a statewide deficit of more than 150,000 low- and moderate-income homes.
According to the Fair Share Housing Center, which was instrumental in the law and cheered last week’s ruling, 423 towns adopted and filed Housing Element and Fair Share Plans this summer, with many of New Jersey’s largest suburbs poised to receive final approval in the near future.
“It’s outrageous that a handful of wealthy towns are spending hundreds of thousands of dollars in taxpayer money trying to block the affordable homes New Jerseyans desperately need,” said Josh Bauers, director of exclusionary zoning litigation for Fair Share Housing Center, who argued the motion to dismiss. “Thankfully, Judge Lougy saw through their baseless claims — and the overwhelming majority of municipalities are already moving forward to create the homes our families, seniors and people with disabilities urgently need.”
The plaintiffs, a group known as Local Leaders for Responsible Planning, filed their first legal challenge in September 2024, contending the law imposes excessive mandates without fully considering local conditions and resources. They also argued 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.
According to NJ Spotlight News, Lougy last week dismissed two lawsuits from the coalition with prejudice and rejected its claim that the law exceeded the constitutional obligation established by the state Supreme Court’s landmark Mount Laurel cases. That followed a January ruling by the judge, who sits in Trenton, which denied LLRP’s request to pause the rollout of the law and allowed state officials to proceed even as the case unfolded.
The ruling does not impact a pending federal lawsuit that the group filed in April, arguing the framework violates the Constitution’s equal protection clause. At issue in the federal lawsuit is the state’s use of the so-called Urban Aid Classification, which distinguishes between more affluent towns and those that historically required greater funding from the state, as a means of calculating the housing shortfalls.
Enacted in March 2024, the new law applies to the fourth round of requirements — essentially a 10-year cycle — under the Mount Laurel doctrine and Fair Housing Act. According to Department of Community Affairs, 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.
While most towns and cities have taken steps to comply with the law — making them immune to so-called builders remedy lawsuits by developers — the Fair Share Housing Center is challenging the plans of more than 15 municipalities. A recent client alert from Day Pitney LLP noted that state officials are now scheduling and hearing settlement conferences and will continue to mediate disputes through December, allowing them make recommendations to the court on whether to certify municipal affordable housing plans.
Municipalities that have chosen not to participate in the program have lost their immunity and are vulnerable to exclusionary zoning litigation, the firm noted.
Towns file federal lawsuit over New Jersey affordable housing law, adding to state litigation
