Going To Court Over Housing “Builder’s Remedy” Suits Force The Issue With Towns That Won’t Plan For Affordable Homes.


POSTED: May 14, 2000

Nearly 25 years after a landmark Mount Laurel housing decision, 43 New Jersey municipalities have been sued by builders over the contentious issue of affordable housing in the suburbs.

Since 1983, the courts have allowed builders to sue towns that have no plan to comply with the state Supreme Court’s 1975 decision that requires each town to provide its “fair share” of low- to moderate-income housing.

The “builder’s remedy” suits are used by developers to construct housing with higher density than would be allowed under local zoning laws by including units for residents of low and moderate income.

In the past, such suits had targeted mostly North Jersey towns, but with the area’s recent housing boom, state officials say, an increasing number of South Jersey towns are being sued.

Court challenges over the issue have been waged throughout South Jersey.

“It’s not what you want to do,” said David Waronker, president of Mount Laurel-based CBD Development Inc., which has sued Edgewater Park, Cinnaminson, and Harrison. “But they don’t want to comply. . . . The only way you can force them is to sue them.”

Waronker wants to build a townhouse development in Edgewater Park and set aside 20 percent for residents of low to moderate income.

Under state law, towns must provide opportunities for the creation of affordable housing, but they are not required to develop and submit plans to the state.

The towns that submit plans go under state jurisdiction and protection, and cannot be sued. But the ones that don’t are vulnerable to the “builder’s remedy” suits, said Sidna B. Mitchell, deputy director for the Coalition on Affordable Housing. Only 232 of New Jersey’s 566 municipalities have filed such plans.

And increasingly, builders are forcing the issue.

“Technically, every town has a [required] number,” Mitchell said. “But many towns just don’t feel they’ll be sued, and they’re just going to take that risk.”

She added, “For a while, nothing was happening. But the [builder’s remedy] put some teeth” into the Mount Laurel process.

For example, in Delran in Burlington County, 27 units were rehabilitated, and about 150 units are being built as the town works to meet its obligation of 232 units.

Washington Township in Gloucester County last year settled three builder’s remedy suits dating from the 1980s. Its new plan outlines how the township will meet its obligation to provide 544 units of affordable housing.

Mayor Gerald Luongo said he was pleased that his town had finally met the Supreme Court requirements “with the spirit of the law.”

“It was a long process, but it was the best thing for the township,” he said of the plan, which won court approval in 1995. “Everything is done.”

As part of the plan, two affordable-housing apartment complexes were recently completed – County House Village and Stream Mills, together totaling 191 units. The town will meet the rest of its obligation mostly by rehabilitating houses, and through the controversial regional contribution agreements, which allow municipalities to pay other municipalities to accept part of their housing obligations. As an increasing number of wealthy towns spend millions of dollars to transfer their affordable-housing obligations to poorer communities, the agreements have been criticized by some who say they create a type of economic caste system while weakening the original Mount Laurel ruling.

Under the regional contribution agreements, Camden and Gloucester City will take 189 of Washington Township’s affordable-housing unit requirements, at $20,000 a unit.

At the landmark decision’s 25th anniversary, about 33,000 affordable-housing units remain to be provided in the state. The total need had been estimated at 86,000 units.

The initial 1975 ruling, sought by Mount Laurel residents and developers, concluded that low- to moderate-income families had been unfairly excluded from the town through restrictive zoning procedures that drove up housing prices.

The 1983 decision, known as Mount Laurel II, reinforced the earlier ruling by spelling out specific methods for communities to provide a “realistic opportunity” for obtaining affordable housing. Under Mount Laurel II, the builder’s remedy, giving builders the right to develop at least four market units per one affordable-housing unit, went into effect.

If a town is sued by those seeking affordable housing, – usually developers and civic groups – it must prove that its housing plan is not discriminatory. If a town loses the suit, the courts can take over its planning for affordable housing.

In response to the court rulings, the New Jersey Legislature passed the Fair Housing Act of 1985, which provided for the creation of the Council on Affordable Housing.

The council came up with a “fair share” of affordable-housing requirements for each New Jersey municipality, and asked each town to provide a plan of how it would go about meeting the quota.

Officials in some municipalities say that the affordable-housing requirement does not apply to them because they have no land left for development. Others assert that the law does not apply to them because they are not affluent.

All are open to the suit. Many have been sued.

“We feel that we’ve got enough already,” said Mayor Darren Atzert of Edgewater Park, which has been in litigation with a developer since late 1998. “We have our share of affordable housing.”

The 2.5-square-mile Burlington County river town already has about 800 apartment units – home to many families that meet the state’s description of those who qualify for such housing, Atzert says. Therefore, it does not need to meet its 50-unit obligation, he said.

“Fair share” is based on a formula that takes into account available vacant land, commercial and industrial development, and income level in the region. A family of four with an annual income of $46,240 is considered moderate income. The same family at or below $28,900 is considered low income.

Waronker, of CBD Development, wants to build his townhouse development on two properties off of Route 130 that total 19 acres. Recently, he criticized Edgewater Park’s delay in providing affordable housing as “unconstitutional.”

“You’re the owner of a property, and you have property rights,” he said. The town has “a constitutional responsibility to provide [affordable housing]. . . . They feel that because they have poor people living in town they don’t need to.”

Next year, after the Census figures are tallied, the state will reevaluate each town’s housing obligations for the third time, based on growth rate and land available for development.