Adam Resnick walked through the doors of his new apartment off North Main Street in Barnegat and sankinto a wide leather chair, quite at ease.
Adam, 40, who has autism and an intellectual disability, is moving out of his parents’ home and into a sharedapartment that isclean, brightly-lit and affordable.He'll move into the furnished unit earlynext year.
“When you have a child like Adam, you’re always thinking: ‘What will happen to him when I’m not around?’” said Ilene Resnick, his mother. “This is the kind of place he’d live in if he was a normal guy.”
Creating such affordable housing, for a broad spectrum of residents,is at the center of a long, convoluted battlein New Jersey, one that is unfurling in the courts as 15 Superior Court judges wrestle over the perennial question: how much affordable housing should eachtownbe required toprovide?
Judges across the state are deciding each town's affordable housing quota— that is, the number of units each municipality is obliged to accommodate, working in tandemwith builders and developers. The judges will also establishguidelines for howto meet those aims.
High stakes weigh on what the courts decide for Ocean and Monmouth counties, not the least being whether those with limited incomes will continue to be able to afford to live at the Shore.
Aparade of interestedparties —developers, town officials, housing advocates, nonprofit leaders, builders and municipal associations —are filing motions, submittingbriefs,and wrangling over what's fair,what's realistic, and whatthe law commands.
The debate overaffordable housing comesas the state continues to inch its way back from the 2008 economic collapse and the devastation from superstorm Sandy three years ago. Job and wage growth have been sluggish, more and more families have fled the state for cheaper surroundings, and development has slowed or, in some cases, stopped in many suburban communities.
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“It’s gotten to a point that it’s almost ludicrous what some of the advocates are projecting (in terms of housing need) because it’s impossible to achieve,” said Tom Thomas, Freehold Township's planner. “Freehold Townshipwould have to be growing at a rate that they’ve never grown in the history of the town. There isn’t that much land left."
Yet advocates contend the need isdire asNew Jersey remainsone of the most expensive places to live.
"You look at foreclosures in the state, you look at the issues around (superstorm) Sandy and displaced renters and homeowners and you look at high property values and it's really clear that there's a desire and a need for quality affordable housing opportunities," said Anthony Campisi,spokesman for the Fair Share HousingCenter, a nonprofit advocating for housing for the poor.
He noted that those in need of affordable housing run the gamut,includingworking families, single moms working two or three jobs, senior citizens on fixed income, or those with disabilities.
In the next weeks,judges will be confronted withdifferent views on how towns have metpriorobligationsand whatthe needs are going forward.
Some towns, like Toms River and Freehold Township, say they'vesteadily worked to create affordable housing in avacuum of rules and numbers from the state. Others, like Marlboro, are battling complaints from builders who claim local officials have done little to meet affordable housing needs.
Whatever numerical targetsare set by the courts, meeting them could be a tough sell.Some suburban communities, like Manalapan, Howell, Berkeley and Holmdel, have opposedaffordable housing proposals, raising loud objections overtraffic, infrastructure,quality of life, and, in some cases, opposition to newcomersand thepoor.
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"There’s a good deal of protesting to any new construction right now," said Donna Blaze,executive director of the Affordable HousingAlliance, a nonprofit in Monmouth County. "Right now the biggest battle is in coming up with a realistic number and the second is coming up with realisticopportunities."
How did we get here?
A series of state Supreme Court decisions in the 1970 and 1980s established that municipalities cannot zone land to exclude the poor, and must provide housing options for low-income residents.
To enforce those directives,developers were granted the right tosue towns not doing their part to meet affordable housing needs. Developers were empowered to filewhat are called "builder's remedy lawsuits" — actions permitting them to build more units than authorized on a specific plot,in exchange for including affordable housing.
The Legislature passed the Fair Housing Act in 1985, creating the Council on Affordable Housingto determine each town's affordable housing obligation and review plans to meet those aims.The measure alsogave cooperating municipalities — those thatsubmitted their plans to COAH —more local control to meet their obligations or quotas and protected them from builder lawsuits.
But more problems soon emerged.
After COAH issued two rounds of rules and quotas for towns, the process stalled in 1999, when COAH twice failed to agree on a third round of quotas and guidelines. Towns were left without any housing obligations or guidelines to meet them.
"Nothing happened," said Thomas, planner forFreehold Township and other towns."COAH didn't do anything, the courts didn't do anything, they just sat there. Meanwhile, municipalities are sitting there and the developers are coming in and saying, 'What are you going to do?'"
The state Supreme Court intervenedin March, ordering the lower courts to take over the COAH process, writing ina decision that COAH “is not capable of functioning as intended."
What does this mean for towns?
TheSupreme Court's March rulingagainexposes municipalities tobuilders' remedy lawsuits.
The ruling gave townsthat proved they tried to meet previous affordable housing quotas temporary protection frombuilder'slawsuits.Those townshaduntil Dec. 8 in Ocean and Dec. 14 in Monmouth to submit plansfor how they will comply with the third round of affordable housing needs.
Marlboro, which applied for protection from builder's remedy lawsuitsbutwas denied such protection by a judge, is already facing a joint lawsuitfrom six developers. The complaints were originally filed in 2010 when the town was kicked out of the COAH process for failing to act in good faith to meet it's affordable housing quotas, according to COAH. The town appealed, butin August an appellate courtupheld COAH's action.
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“Marlboro has fulfilled only a fraction, approximately one-fifth, of its 1,019 unit second-round obligation,” the Appellate decision reads. “The township has avoided its obligations by obtaining multiple postponement during the COAH review process, shifting project sites, and requesting additional postponement when confronted by COAH’s demands for further information.”
The court said Marlboro had engaged in “dilatory tactics" in meeting its requirements.
“Marlboro is the rogue outlier, the bad actor town in the state,” said ThomasMcCloskey, an attorney representing the builders suing the town. He says his clients have an aggregate of about 300 acres of land in Marlboro.
“(Towns) can kick and scream and contend they don’t have the ability to do it and it’s unreasonable to expect it, but it’s most definitely doable in Marlboro given properties that my clients have,” said McCloskey. “You’re going to meet it somehow, some way."
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Louis Rainone, who represents Marlboro, recently saidthe town was going to submit plans to show it had met its prior obligations. It has also petitioned the Supreme Court to let it appeal the court ruling.
“We tend to get this reputation as being recalcitrant. We’re really not, we’ve done the best that we can given the way the rules are structured,” said Rainone. “Marlboro is a much more developed place than it was 20 years ago. There are issues of environmental constraint on land and capacity on the sewer system.”
As a rule of thumb, developers typically designate 20 percent of their housing as affordable, which means building 1,000 affordable units could bring with it another 4,000 units of market-rate housing. Affordable housing can be rented or purchased by those earning less than 80 percent of median income.
In Monmouth and Ocean counties, an individual who makes $51,864 or less is considered moderate-income;those earning less than $32,415 are considered low-income, according to 2014 limits set by the state. Prices for affordable homes are calculated based on income limits and are always below market rate.
In the case of Adam, who will live ina three-bedroom unit, theroughly $1,200 monthly rent will be dividedwith two roommates.
Adam, who has limited verbal skills, will slowly transition into his new apartment, spending two weekends in December, then a whole week in January, before moving in.
"Without affordable housing, I’m not sure how this would be possible,” said Cheryl Crick, Adam's sister. “Affordable housing is a lifeline for families like mine.”
The debate over numbers
Fair Share Housing, anadvocacy group that has long fought — and sued—to create housing opportunities for the poor,says that more than 200,000 affordable housing units are needed in the state.The group calculates some towns' quotas, like Marlboro and Toms River, at more than1,000 units.Ultimately, though, it'll be up to thejudges todecide.
Municipalities are allowed to meet their quotas by allowing construction of new homes,extending deed restrictions or building group homes or assisted living facilities.More detailsonhow towns can comply will be decided in court.
Two reports from the League of Municipalities challenge the numbers set by Fair Share Housing, calling the estimatesa “significant overstatement” and “inflated.”
Some municipalities, too, have blasted the numbers and said they are not feasible. In some cases, smaller towns, like Allentown, don’t have any available land, plannerssay.
“The biggest unknown is just not knowing what the numbers are and not having a clear, identified statewide formula you can rely on,” said Jay Lynch,town planner inToms River. “We need a process that we can count on."
Housing advocatessaid the reports by the League of Municipalities are an attempt to slash town obligations. They refute the group'sconclusion that more than a quarter of low- and moderate-income households in New Jerseydon’t earn enough to afford housing and should not be included in the calculations.
“There’s not nearly enough housing production to meet the needs,” said Gail Levinson of the Supportive Housing Association of New Jersey. “If we don’t house this population, these are individuals who are not going to go away. If they are not provided housing, what will happen to them?”
Municipalities are hiring experts to calculatetheirobligations. Judges, too, have brought in special masters to crunch regional estimates. Final numbers, however,will be decided by the courts.
In the meantime, towns are busy adjusting developing plans to meet future affordable housing quotas. It's unclear when decisions will start trickling in from the judges.
Karen Yi: 732-643-4277; kyi@gannettnj.com
