TRENTON, N.J. (AP) — The New Jersey Supreme Court heard arguments Wednesday involving a 29-year-old landmark ruling on affordable housing that local governments criticize as too restrictive while affordable housing groups say the state is not complying with the ruling to prevent discrimination against the poor.
The 1983 ruling said the state could obligate towns to have a certain number of homes for the poor. But towns, by law, do not have to build the houses, just zone property to allow for them or require developers to put them up in exchange for doing other projects. Local officials nearly uniformly despise the housing requirements, viewing them as taking away local power on land-use issues, forcing denser development and adding more consumer demand on local services.
In the current case, affordable housing advocates and builders are asking the court to find that the state Council on Affordable Housing must resume its practice of giving each town a specific obligation on how many units of housing the town must create.
For their part, towns and the state say they want matters simplified by requiring that towns provide the opportunity for subsidized homes for low-income people based on how many new market-rate homes and how many jobs are created in their communities.
In court Wednesday, Justice Anne Patterson asked Stephen Eishdorfer, a lawyer for the New Jersey Builders Association, whether towns would still want to keep out poor people as they did in 1983.
"Are you arguing that the 566 municipalities in the state of New Jersey are in the same place as it was 30 years ago?" she asked.
"Except to the extent that they are forced not to be," he said. "Yes."
Eishdorfer and others argued that towns may prevent virtually all new development if that would keep them from having to accept low-income housing.
"I don't think this is about people being evil," he said. "This is about the nature of the suburbs, why people move to the suburbs and the tax structure."
Arguing for the New Jersey League of Municipalities, Edward Buzak said the state needs to loosen regulations.
"We can't look at what the Supreme Court said in 1983 as to what the landscape was and say 'that's what the landscape is now.'"
Deputy Attorney General Geraldine Callahan, speaking on behalf of the council, said the proposed way to require towns to allocate housing for the poor, known as growth-share, makes the most sense.
"What the value of growth-share is is the housing would be created where the growth is occurring," she said.
But Kevin Walsh, a lawyer for the Fair Share Housing Center, said that model could result in a city like Newark of many low-income residents and a higher obligation than a wealthy suburb like Millburn.
"I'm an advocate for the poor," he told the judges. "I want as much affordable housing as there can be in the right places so poor kids can go to good schools and walk around in safety."
The issue has a long and contentious history in New Jersey.
In a 1975 ruling, the court said towns could not use zoning laws to keep low-income people out. Some consider the so-called Mount Laurel decision a landmark in civil rights; others say it is an example of courts creating policy and overstepping their bounds.
Eight years later, the court decided the ruling did not result in housing for low-income people and said the state could obligate towns to have a certain number of homes for the poor.
The Fair Share Housing Center says the ruling has helped produce 60,000 new units of low- and moderate-income housing across New Jersey since then. Other groups say the number is lower. About 700,000 new units of housing in all were produced in the state during that time. Affordable housing advocates say much of it went up only because of the Mount Laurel rulings.
Towns that did not develop plans to meet their obligations were subject to lawsuits from homebuilders, who could argue that they should be able to build more densely than would otherwise be allowed as a way to provide low-income housing.
After a round of local obligations expired in 1999, legal battles erupted over what should replace them.
Related but separate litigation is pending, including whether Gov. Chris Christie has the authority to disband the Council on Affordable Housing. The court is to hear that case in January.
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