Municipalities Required to Abide by New Jersey Affordable Housing Law
On January 2, 2025, Judge Robert Lougy of the Superior Court of New Jersey, Mercer County issued an order in Borough of Montvale v. State of New Jersey, denying the request of nine New Jersey municipalities that had sought an injunction to stay the deadlines by which they must fulfill certain affordable housing obligations under recently approved legislation.
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In issuing the denial, Judge Lougy found that the municipalities had failed to establish irreparable harm, which is an essential component of an application for injunctive relief. The court noted that a municipality that does not comply with the new legislation is in the same position as one that does comply with the statute’s deadlines. The municipality can either file an action seeking a judicial declaration that it has complied with its Mount Laurel obligation or do nothing and await and defend an exclusionary zoning lawsuit that may not come.
The Court’s decision noted that municipalities face a steep burden in challenging the validity of legislation and that the plaintiff-municipalities had failed to overcome the burden of demonstrating a “reasonable likelihood of success on the merits.” Lastly, the Court found that the public interest and balancing of the equities overwhelmingly favored against a stay, noting that the legislation serves the interests of the State’s low- and moderate-income households.
As a result, these New Jersey municipalities must file resolutions adopting their affordable housing obligations by January 31 and submit affordable housing plans to the State by June 30. If the municipalities fail to do so, they risk exclusionary zoning lawsuits that compel development without municipal approval.
The suit comes after Governor Murphy approved legislation on March 20, 2024, amending the 1985 Fair Housing Act to implement the Mount Laurel doctrine, which requires municipalities to “provide realistic opportunities for low- and moderate-income housing.” The legislation seeks to produce affordable housing through statewide policies on the calculation of a municipality’s fair share of affordable housing obligations. Among other things, the Act retired the Council on Affordable Housing and distributed its regulatory powers to the courts, the Department of Community Affairs and the New Jersey Housing and Mortgage Finance Agency.
Judge Lougy ordered oral argument on the pending motions to dismiss the Plaintiffs’ complaint on January 31, 2025.
If you have questions about how New Jersey’s affordable housing law may impact you, please contact one of our New Jersey zoning and land use attorneys.
Co-authors Michael Phillips is a partner and Augusta O’Neill and Andrea Sálomon are associates in the zoning & land use practice group at Klehr Harrison