Middle Seeks Immunity from Affordable Housing Suits

COURT HOUSE – Middle Township is instructing its special Mount Laurel Counsel to “swiftly take action” to file a motion for temporary immunity, protecting the municipality from builder’s remedy lawsuits with regard to its constitutional obligation to provide affordable housing.
The builder’s remedy lawsuit is one in which a court, dissatisfied with the voluntary cooperation of a municipality in meeting its affordable housing obligations, may permit a developer to construct housing at a higher density than allowed under normal zoning, provided that a substantial number of the units built meet the definitions for low- and moderate-income units.
Municipalities have been struggling to develop court-approved plans that gain them immunity protection against such suits.
The constitutional obligation to provide affordable housing began with a 1975 case, Southern Burlington County N.A.A.C.P. v. Mt. Laurel Township. The case gave a name to a series of legal proceedings that followed, as the state and local municipalities attempted to find ways to define, plan for and satisfy this newly declared obligation.
A Supreme Court decision in 2015 shifted control of setting affordable housing obligations and ensuring municipal compliance. Declaring the state’s executive branch process led by the Council on Affordable Housing (COAH) “morbid,” the decision placed control over the process with the courts, inviting municipalities to file requisite plans and requests for declaratory judgment in order to both demonstrate the seriousness of their voluntary compliance and to gain protection from builder’s remedy suits.
As of September 2015, nine municipalities in Cape May County filed declaratory judgment actions. Middle Township was not one of the nine.
As litigation over the actual size of the affordable housing obligations continued, more municipalities across the state sought court protection while developing plans that would meet their obligations.
In Middle Township, despite efforts to provide an increased number of affordable housing units, the Conifer developments being examples, the governing body had not filed for declaratory judgment and had not modified its adopted Round 3 Housing Element and Fair Share Plan, the plan that would serve as a basis for demonstrating voluntary compliance.
Fear of its lack of immunity and its exposure to a builder’s remedy lawsuit was a motivating factor when the township granted building permits to a developer seeking to build handicapped accessible affordable housing units at Patsy’s Way.
On Jan. 23, Middle Township Committee approved a resolution instructing its special counsel to file the necessary documents “with a full acknowledgment that it will expeditiously go through the process of formally amending its Housing Element and Fair Share Plan to comport with its current fair share obligations.”
At a committee meeting in April, then Solicitor Frank Corrado estimated that the township’s obligation lies in the range of 700 to 750 units. He said that efforts by the township, including the Conifer developments, have probably satisfied 350 to 370 units of that total obligation.
Corrado went on to explain that the task facing the township was to ensure that its zoning ordinance “allows reasonable opportunity for the development of the required level of affordable housing.”
The ultimate goal will be to present a plan and ordinance to the court for approval which will satisfy the township’s obligations out to 2025 when those obligations will again be recalculated.
The resolution passed Jan. 23 reaffirms the township’s “commitment to satisfy any obligations a court may reasonably require.”  While the township is preparing and updating its plan, it is seeking “temporary immunity” from the court.
By seeking an order “granting immunity to be effective from the date of this resolution,” the governing body hopes to forestall any attempt at a builder’s remedy lawsuit initiated prior to its readiness to file amended documents necessary for a final judgment that would grant immunity until 2025.
To contact Vince Conti, email vconti@cmcherald.com.