26 NJ towns file appeal after failing to halt affordable housing law

A coalition of 26 New Jersey towns has filed a swift appeal just days after a state Superior Court judge denied their request to halt the state’s new affordable housing law from taking effect.

The towns are seeking an emergency review of their case by the state Appellate Division with hopes that the higher court would grant a stay of the law. They point to a key deadline at the end of this month when all New Jersey municipalities must either accept the number of affordable homes the state is requiring them to build in their communities, or present an alternative number they reasonably believe they can develop over the next decade.

Last week, Mercer County Superior Court Judge Robert Lougy rejected the towns’ request to stay the law. Passed last year by the legislature, it lays out guidelines for New Jersey’s next 10-year round of mandatory affordable housing development. Lougy wrote in his decision that the wider public interest in constructing new affordable housing “overwhelmingly” outweighed the towns’ arguments that they’ve been overburdened by the state’s mandates.

Despite losing their attempt to stay the process, the towns’ lawsuit can continue. The municipalities claim the state is unfairly requiring them to build more housing without accounting for how much development they can truly support given their lack of available land and the increased burden on infrastructure like roads and sewers.

In the towns' appeal notice, attorney Michael Collins wrote that the Jan. 31 deadline requires towns to comply with a process riddled with “constitutional infirmities” or risk losing their zoning power and immunity to being sued by builders who could force them to develop housing against their will.

With their latest filing Monday, the 26 towns are asking the appellate division to act quickly and grant the stay. The next hearing in the lawsuit is scheduled for Jan. 31 on a motion filed by state Attorney General Matthew Platkin’s office, the chief defendant in the lawsuit, to have the case dismissed.

Attorneys and officials for the 26 towns, as well as Platkin's office, did not provide comment for the story at the time of publication.

'The Program'

The towns’ appeal also argues that the newly established panel known as “The Program” for handling disputes that towns raise over their affordable housing requirements violates the state constitution's separation of powers.

Under the law passed last year, the Legislature tasked an administrative state court judge with appointing a set of state judges and legal experts to review affordable housing disputes moving forward. In part, legislators have said they’re doing so to avoid the costly litigation that has been a hallmark of affordable housing disagreements across the state.

But the towns argue that the power to appoint such a panel lies with the governor and the Legislature – not the judiciary. In the notice of appeal, Collins wrote that the state’s elected officials are “walling themselves off from political accountability for The Program that the separation of powers requires.”

In his decision last week, Judge Lougy seemed to agree with the arguments of the attorney general’s office. It has said that The Program is voluntary and if towns choose not to participate they can seek to resolve housing disputes through the same court process used in the past.

Adam Gordon, director of Fair Share Housing Center, a housing nonprofit that has intervened in the lawsuit, said he fully expects the Appellate Division to affirm Lougy’s decision.

“In the midst of a generational housing crisis, it is unfortunate that a small group of towns unrepresentative of New Jersey as a whole continue to expend tremendous amounts of taxpayer resources to block the homes New Jerseyans desperately need,” Gordon said.

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The 26 towns suing to overturn the state’s affordable housing law:

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Washington, Norwood, Parsippany-Troy Hills, Franklin Lakes, Cedar Grove, East Hanover, Holmdel, Wall, Allendale, Westwood, Hanover, Wyckoff, Wharton, Mendham, Oradell, Montvale, Denville, Florham Park, Hillsdale, Manningham, Millburn, Montville, Old Tappan, Totowa, Closter, West Amwell