Both sides declare victory in housing ruling

This was published in today’s Herald News.

Both sides declare victory in housing ruling
Tuesday, May 22, 2007

By DENISA R. SUPERVILLE, HERALD NEWS

MORRISTOWN — A state appellate court panel determined Monday that the New Jersey Meadowlands Commission was responsible for providing affordable housing in areas where it controls zoning. In an 18-page document, the panel ruled that the commission “has a constitutional responsibility to plan and zone for affordable housing,” and must do more “than merely assist the municipalities” to provide state-mandated housing for poor families.

Housing advocates interpreted Monday’s decision to mean that state agencies, like any municipality, must build housing for low- and moderate-income families. But commission officials said the ruling was “a victory” and supported what the state agency has consistently argued that they have a responsibility, not an obligation, to provide affordable housing.

“The (state) constitution doesn’t depend on any state agency choosing to implement affordable-housing plans,” John M. Payne, a law professor at Rutgers University and a housing advocate, said Monday. “The constitution requires that whenever the state regulates the use of land, it makes possible affordable-housing opportunities as part of that regulation.”

The appellate court decision in the Meadowlands Commission case grew out of the Mount Laurel principle, which says municipalities have a constitutional obligation to use their zoning and land use powers to provide for affordable housing.

Kevin D. Walsh, lead attorney for Cherry Hill-based Fair Share Housing Center, which sued the commission after it developed new zoning rules in 2004, said the appellate ruling was a reaffirmation of what the constitution mandated.

“They really have to act like a municipality does in terms of planning and zoning for affordable housing,” Walsh said. “That means figuring out how much affordable housing they need, rather than sitting back passively and letting the municipalities that don’t control the land attempt to provide the affordable housing.”

Walsh called the ruling a victory for poor families.

“What it means is that families will have housing close to jobs and that families would be able to afford housing, so that their kids can go to good schools, and their kids can live in safe neighborhoods,” Walsh said.

The commission originally argued that the agency did not have a “direct obligation” to zone or plan for affordable housing. The commission has since adopted interim regulations encouraging all developments in the district to provide its fair share of housing to help municipalities to meet housing mandates. A state appellate court invalidated part of the Council on Affordable Housing’s Third Round rules in January, and gave the agency until July to revise them. Since then the state affordable-housing program has been in limbo. On May 8, COAH asked the court for an extension.

Robert Ceberio, commission executive director, said the court ruling supported what the commission had believed all along: that the agency had a constitutional responsibility to help municipalities meet their obligations, but not a constitutional duty to do so.

Ceberio viewed the decision as “a victory for” the commission’s efforts to provide affordable housing because the court did not grant the Fair Share Housing Center’s request to halt all development except residential projects that included affordable housing and appoint a special master to oversee plans.

Meanwhile, East Rutherford Mayor James Cassella said the appellate ruling was “something we have been saying all along.”

“Everyone tried to blame East Rutherford,” Cassella said. “And our argument is that we don’t have jurisdiction as to what can be built and where it can be built because we don’t control the zoning.”

The case, which was heard on April 24 in the Appellate Division of Superior Court in Morris County, was prompted in part by the $2 billion Xanadu project, a mixed-use development in East Rutherford. It is expected to generate 20,000 construction jobs and about 20,000 permanent jobs. Under New Jersey affordable-housing statutes, one affordable-housing unit must be built for every 25 new jobs created by nonresidential development.

The Fair Share Housing case was combined with another filed in December 2004 by the New Jersey Builders’ Association against the commission and the New Jersey Sports and Exposition Authority, which is overseeing the Xanadu development.

The three-member appellate panel also dismissed the builders’ association complaint against the Sports and Exposition Authority.

“We are very pleased with the results,” said Timothy J. O’Neill, lead attorney for the authority, who argued that the agency was not required to provide affordable housing because it had a very specific mandate from the state.

“What the court has said is that the Sports Authority has no Mount Laurel obligations for today and tomorrow, for the future,” O’Neill said.

Reach Denisa R. Superville at 973-569-7135 or Copyright © 2007 North Jersey Media Group Inc.
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