Middle Introduces Affordable Housing Set-aside Ordinance

COURT HOUSE – Since June 1, Middle Township has engaged in an increasingly confrontational dispute  with the Fair Share Housing Center (FSHC), a non-profit advocacy group designated by the New Jersey Supreme Court as an interested party in fair share housing negotiations.
The FSHC essentially acts as a representative of the low-and moderate-income community in negotiations over municipal fair share housing plans. The municipal housing obligations at the center of such plans come from a series of court decisions aggregated as the Mount Laurel Doctrine.
The FSHC June 1 initiated litigation to dismiss a 2019 temporary judgment and strip Middle Township of any immunity from builder’s remedy lawsuits, a move that would leave the municipality open to developer litigation that could force low-to moderate-income housing, even in defiance of local zoning. 
The litigation was initiated because the FSHC accused the municipality of failing “to comply with its constitutional obligations with good faith and reasonable speed.”
In 2019, the municipality passed a resolution stating its intent “to fully comply with its Mount Laurel obligations,” adding that it would achieve compliance “voluntarily.” 
Since then, the municipality has not produced a fair share housing plan. Middle Township Business Administrator Kimberly Krauss June 14 issued a press release, stating, “A balanced plan to chart the course on affordable housing in the township is nearing final form.” 
The municipality June 21 again adopted a resolution that reaffirmed its 2-year-old stated intention to voluntarily comply with its affordable housing obligations.
An FSHC letter to the court that same day stated, “It is sad and tellingthat two years after initiating the declaratory judgment action, the best that Middle can rustle up in its defense is hollow statements, but no meaningful actions.”
Superior Court Judge John Porto July 7 ordered the municipality to share a framework for its housing plan with the FSHC by the end of the month. One month earlier June 7, Mayor Timothy Donohue said it was 95% complete. At that time, Donohue said, “I thought everything was going well until a couple of days ago, when this litigation was filed.” 
Now, Middle can present its plan and negotiate its acceptance by the FSHC and the court.
Since that litigation was filed, Middle has also debated with the FSHC about the status of its current immunity from exclusionary zoning lawsuits. 
The municipality has made several public statements maintaining that its immunity, first granted in 2019, was still in effect. FSHC has repeatedly stated that the immunity lapsed in November 2020.  
In a July 9 press release, Middle stated that Porto “extended the township’s immunity from builder’s remedy lawsuits through Sept. 30;” however, it appears that what happened is somewhat different. 
Porto issued a stay of the termination of the municipality’s immunity. That action provides Middle with protection from exclusionary zoning and builder’s remedy lawsuits until Sept. 30, while other aspects of the judge’s ruling are acted on.
The court also appointed retired judge Steven Perskie as special master “to oversee the township’s compliance efforts and to serve as a mediator between FSHC and the township.”
Middle Township Committee July 7 introduced a mandatory set-aside ordinance, which, if adopted in August, would require housing developments of five or more units in the town center zone to set aside 20% of those units for affordable housing. The move came on the same day as the actions by Porto. The ordinance is expected to come up for final reading, public hearing, and a vote on adoption Aug. 16.
Court-ordered mediation was also part of Porto’s response July 7. The municipality is to deliver its proposed framework of a fair share plan on or before July 30. A mediation session on the plan is scheduled to begin Aug. 5. 
The court order also states that “if necessary, oral argument on FSHC’s pending motion to dismiss the township’s declaratory judgment action will be heard Sept. 30.”
Porto states that this “expedited process” is intended to first “establish the township’s overall affordable housing obligations,” second to “require the township to design a compliant round three fair share plan,” and to “facilitate a potential resolution between the FSHC and the township.”
The next progress report will come at an Aug. 19 case management conference, at 10 a.m.
To contact Vince Conti, email vconti@cmcherald.com.