COURT HOUSE – The Fair Share Housing Center (FSHC) June 1 filed a notice of motion against Middle Township. The legal process that begins with that filing seeks to dismiss a 2-year-old temporary judgment that, until recently, protected the municipality from exclusionary zoning actions, like builder’s remedy lawsuits.
Concern about such a lawsuit was one factor that led Middle, in 2019, to seek court protection. In January of that year, the municipality had its special counsel file a motion with the Superior Court, requesting temporary immunity from builder’s remedy lawsuits, while it said it intended to modify its Housing Element and Fair Share Plan “to comply with its current fair share obligations.”
At the time, the municipality was dealing with litigation from a developer who wanted to construct an affordable housing complex on Patsy’s Way.
Background
Founded in 1975, the FSHC has been a constant presence in cases that seek to enforce the state’s obligations to affordable housing that largely stem from a series of court decisions that established what has become known as the Mount Laurel Doctrine.
Simply stated, they require that each municipality in the state must provide “a realistic opportunity for the construction of its fair share of low– and moderate-income housing.” Each community’s fair share has been reduced to a number of units that constitute its obligation.
The actual number of units attached to the municipality has been less a factor in settlements than the establishment of a housing plan that provides an opportunity for low– and moderate-income housing.
In 2015, after years of foot-dragging by the administrative agency in charge of spearheading the implementation of the Mount Laurel decisions, the Supreme Court of New Jersey established a judicial process as a means for towns to demonstrate their housing plan satisfies their Mount Laurel obligations.
Failure to have an approved plan in place leaves the town open to legal challenges to its zoning regarding affordable housing projects.
Not all communities in the state have involved themselves in the process. Some have not developed housing plans, and they have avoided being sued. However, these towns tend to possess less demand for low– and moderate-income housing, which is not the case in Middle Township.
In 2019, the courts granted Middle temporary protection against such legal actions, with the municipality stating it was “committed to achieving compliance expeditiously.”
Middle’s Declaration of Intent
In a January 2019 resolution passed by the governing body, Middle declared its intent “to fully comply with its Mount Laurel obligations.” The municipality said it directed its legal counsel “to take any and all reasonable actions to help the township achieve Mount Laurel compliance voluntarily.”
Part of that process was the municipality’s filing of a declaratory judgment action “to secure jurisdiction of the courts and to begin the process of constitutional compliance.”
The FSHC claims in its litigation that despite the municipality’s statement of its intent, it failed repeatedly to move toward a resolution. The action filed by the FSHC cites numerous extensions of the temporary immunity and claims each one was accompanied by statements of commitment, but each was followed by little actual action.
Mayor Timothy Donohue repeatedly defended the municipality’s commitment to affordable housing, pointing to developments in Court House and Rio Grande, among other efforts.
In 2019, Donohue admitted the municipality was “a little bit late to the game,” pointing to the years in which Democrats controlled Middle Township Committee, but the statement was true nonetheless. According to the FSHC, the municipality has not gained much ground in the game since then.
Donohue sees it differently, stating at a June 7 Middle Township Committee meeting that the municipality was 95% of the way to a draft housing plan.
“I thought everything was going well until a couple of days ago when this litigation was filed,” Donohue said.
What’s at Stake?
According to the FSHC filing, Middle Township has been without immunity from exclusionary zoning actions since November 2020, when its last temporary extension expired. Donohue said the immunity remains in place.
The action by the FSHC, if successful, would dismiss the municipality’s 2019 judgment and terminate its immunity so temporary extensions would no longer be possible, which would leave the municipality open for builder’s remedy lawsuits if a developer sought to construct affordable housing projects. Losing such a lawsuit opens the opportunity for the developer to build even higher-density projects, regardless of the municipality’s zoning rules.
The new risk is the same risk that drove the municipality to seek court protection over two years ago. At that time, Donohue said the court filings for declaratory judgment and immunity were “a way to seek relief from builder’s remedy lawsuits by showing good faith and reaching an agreement with the Fair Share Housing Center.” Now, the FSHC is accusing the municipality of bad faith.
The next move will come when the municipality responds to the allegations in the FSHC filing. Donohue believes FSHC acted on inaccurate information, which it did not verify with municipal officials before it acted.
To contact Vince Conti, email vconti@cmcherald.com.
