Middle Seeks Affordable Housing Plan

COURT HOUSE – Middle Township Committee devoted its April 16 work session to a discussion of affordable housing.  
The municipality must present its plan for meeting its obligations under what has become known as the Mt. Laurel Doctrine.
A set of controversial state Supreme Court decisions establishing a constitutional obligation to provide affordable housing began with a 1975 case, Southern Burlington County N.A.A.C.P v. Mt. Laurel Township, giving a name to the series of legal proceedings that followed.
After another Supreme Court decision in 2015, control over the process of setting affordable housing obligations and ensuring municipal compliance was shifted from an executive branch agency to the state courts where it currently rests.
Confusion over almost 40 years of litigation and political maneuvering across several administrations means that the specific nature of any town’s obligation is not a firm number. 
Yet the risks involved to a municipality that does not gain court approval of a specific plan can be significant.
Middle Township’s Obligation
Municipal Solicitor Frank Corrado told the governing body that the best understanding of the township’s obligation lies in a range of 700 to 750 units.
Efforts by the township to build qualified housing, including work with Habitat for Humanity and the recent Conifer developments in Rio Grande and Court House, have probably satisfied 350 to 370 units of that total obligation. 
Administrator Elizabeth Terenik explained that the Conifer developments carried a special weight in the calculations allowing for a higher reduction in the obligation.
If Corrado and Terenik are correct, that still leaves the township with what is probably a remaining obligation of nearly 400 units. This inability to state precisely what the obligation is going forward is a by-product of the uncertain nature of the process.
As Corrado explained it, the task before the township is to ensure that its zoning ordinance “allows a reasonable opportunity for the development of the required level of affordable housing.”
The township does not have to build the housing or otherwise create it, but it does have to reasonably allow for it.
Zoning and Affordable Housing
From the start, the Mt. Laurel Doctrine has been a pushback against what advocates of affordable housing term exclusionary zoning, zoning ordinances that made it difficult or even impossible to develop low- and moderate-income housing opportunities in a particular community.
Part of the potential penalty attached to exclusionary zoning policies in a municipality is court approval of what is known as a “builder’s remedy lawsuit.”
When a municipality has what it feels is an acceptable plan for meeting its obligation, court approval of that plan is sought through a process in which the municipality files for a declaratory judgment from the court.
A favorable ruling on a municipality’s plan and zoning ordinance grants the community immunity from those builder’s remedy lawsuits.
Without that immunity, a developer may sue a community over the right to develop affordable housing even in areas where the community’s zoning laws would prohibit the development.
If a developer wins such a suit, they may gain court approval to increase the density of the development, placing more units on a land parcel then would otherwise be allowed.
In most cases, the act of filing for a declaratory judgment from the court grants a community temporary immunity for such lawsuits until the court rules on the community’s plan.
Middle Township has never filed for a declaratory judgment leaving it open to builder’s remedy suits should a developer want to create an affordable housing development.
The township’s reluctant agreement with a developer who proposed handicapped accessible, affordable housing in the Patsy’s Way area was driven in part by a desire to avoid a negative decision in a builder’s remedy suit.
Next Steps
The township committee agreed that Corrado, Terenik, and Engineer Vincent Orlando would review the zoning ordinance to see if it provides a reasonable opportunity for developers to provide affordable housing in ways that would satisfy the remaining obligation.
The study group would then report back to the governing body on any proposed changes to the ordinance at a May committee meeting.
A mechanism used in other municipalities in the county is a 20 percent set-aside for affordable housing units in any development that contains five or more units.
Another is a plan to allow for the development of accessory apartments in specific areas, often in the business district.
Terenik said, “There are many things we can look at.”
The goal would be to present a zoning ordinance to the court for approval which would satisfy the township’s obligations to 2025 and grant it immunity against builder’s remedy suits.
To contact Vince Conti, email vconti@cmcherald.com.