Affordable Housing

In 1975, the N.J. Supreme Court held that municipalities may not pass zoning ordinances which exclude low and moderate income families. Since that decision, every municipality in New Jersey has had to provide a number of 'affordable housing' units. There have been several attempts to refine the process of determining the number of affordable housing units each municipality 
must provide.

The Rutgers New Jersey Digital Legal Library offers a comprehensive resource on the history of the Mount Laurel decision and subsequent litigation.

The obligation to provide a realistic opportunity for affordable housing stems all the way back to the Mt. Laurel decisions of 1975 and 1983. Those decisions declare that municipal land use regulations which prevent affordable housing opportunities for lower and middle income families are unconstitutional and ordered all New Jersey municipalities to plan, zone for, and take affirmative actions to provide realistic opportunities for their “fair share” of the region’s need for affordable housing for low and moderate-income people. The decision to transfer the authority to the courts enabled many developers throughout the State to file for intervenor status, effectively giving the developer a “seat at the table” with the municipality in court. The premise of the intervenor is that as a developer they have the land and resources to provide the municipality an opportunity to meet its affordable housing obligation. 

In March of 2015, the New Jersey Supreme Court declared the Council on Affordable Housing (COAH) failing and transferred jurisdiction from COAH to New Jersey trial courts in order to adjudicate municipal compliance with their affordable housing obligations. The decision permitted municipalities to file Declaratory Judgment Actions (DJ Actions) with trial courts to seek approval of their Affordable Housing Plans, or risk being sued by a developer.  As required, the Borough submitted a Declaratory Judgment to the courts by the prescribed deadline.

The Borough’s Declaratory Judgement Action filed on July 13, 2015 was opposed by the Fair Share Housing Center (FSHC), a statewide affordable housing advocacy group and eventually a local developer/intervenor.

On December 6, 2016, members of Clarke Canton Hintz, an architectural firm that specializes in planning affordable housing obligations, made a 
presentation to a joint meeting of the Madison Borough Council and the Madison Planning Board describing the current determination process. 

The matter was assigned to Morris County Superior Court Judge Steven Hansbury and was transferred in March of 2017 to Judge Maryann Nergaard upon his retirement.

The court has appointed a Special Master and a Regional Numbers Master to assist the parties with a resolution of the issues.

Fair Share HousingDiagram

Below is a list of notable dates:

  • 8/11/2015 – Initial Case Management Conference (CMC) before Judge Hansbury;
  • 10/15/2015 – CMC before Judge Hansbury;
  • 11/30/2015 – Submission of Borough’s initial Fair Share Plan;
  • 1/22/2016 – Court grants requested extension;
  • 3/1/2016 – Conference with Special Master and FSHC;
  • 3/7/2016 – Phone conference with Special Master and FSHC;
  • 4/27/2016 – Conference call with Special Master;
  • 5/10/2016 – Conference call with Special Master;
  • 5/12/2016 – Case management conference before Judge Hansbury;
  • 6/10/2016 – Conference call with Special Master;
  • 6/13/2016 – Telephonic case management conference;
  • 6/14/2016 – Court adjourns compliance hearing from 7/21/16 to 8/31/16;
  • 8/5/2016 – Borough letter to Special Master Bolan with proposed settlement;
  • 9/6/2016 – Case management conference before Judge Hansbury;
  • 9/9/2016 – Supreme Court grants leave to hear and consider “gap issue”;
  • 1/11/2017 – N.J. Supreme Court rules 'gap years' in affordable housing obligations count
  • 3/17/2017 – Case management conference before Judge Neergard;
  • 5/1/2017 – Borough circulates revised proposed Plan;
  • 5/31/2017 – Mediation session with Special Master at Borough Hall;
  • 6/9/2017 – Telephonic case management conference;
  • 6/20/2017 – Dr. Reading appointed regional “numbers master”;
  • 3/8/2018 – Judge Jacobsen renders 217 page Mercer County decision;
  • 10/4/2018 – Telephonic case management conference with Judge Neergard;
  • 10/15/2018 – Borough circulates revised Plan and settlement proposal;
  • 10/19/2018 – Court orders mandatory case management conference for 11/2/18;
  • 11/2/2018 – Court ordered mandatory case management conference with the Special Master and FSHC;
  • 12/10/2018 – Telephonic case management conference with Special Master and FSHC;
  • 12/10/2018 – Agenda discussion at regularly scheduled Borough Council Meeting;
  • 12/14/2018 – Court ordered mandatory case management conference with the Special Master and FSHC
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