In monumental housing decision, Supreme Court rules towns must account for 'gap period,’ with exceptions

In a major decision that will alter the housing landscape in New Jersey, the state Supreme Court ruled Wednesday that towns, with some exceptions, must account for the 16-year period when there was a dearth of affordable housing.

The ruling will force towns to zone for thousands of additional affordable units statewide. The exact numbers will be hashed out in settlements and lower courts across New Jersey.

The decision is a pivotal moment in a decades-long dispute enforcement of the Mount Laurel doctrine — a pair of Supreme Court decisions that prohibit municipalities from using zoning powers to discriminate against the poor. This decision will set the agenda for trials across the state as Superior Court judges assign hundreds of municipalities an “obligation,” or the number of units that they must include in zoning plans."

The question that was before the state’s highest court was whether towns must account for a period from 1999 to 2015, known as the "gap period," when the agency that previously enforced these requirements failed to do so. In its ruling, the court changed the formula for the number of units that a town must currently zone for, ruling that the gap period must be folded into it. The court made no determination on the overall number of units, which will be fought over on a municipality-by-municipality basis.

"We hold that towns are constitutionally obligated to provide a realistic opportunity for their fair share of affordable housing for low- and moderate-income households formed during the gap period and presently existing in New Jersey," Justice Jaynee LaVecchia wrote in a unanimous 32-page decision. "Attending to that need is part of the shared responsibility of municipalities."

But there are some exceptions in the ruling that should claw back the number of units towns must include in zoning plans from this time frame.

Poor residents who moved away, died or became middle class during this time will be excluded from the formula. Additionally, any substandard homes that towns rehabilitate as part of an obligation will not be counted twice. This means that if a substandard home existed from 1999 to 2015, municipalities will only need to account for it one time.