WBK Industry News - Litigation Developments

New Jersey Supreme Court Declines to Review Affordable Housing Case

The New Jersey Supreme Court recently denied a petition to review an intermediate appellate court’s decision in an affordable housing case that had been pending for over a decade, keeping in place the lower appellate court’s holding that a local municipality can require developers to provide more affordable housing than the municipality’s current needs would require.

In 2011, affordable housing advocates sued to seek compliance with the City of Hoboken’s affordable housing ordinance.  Specifically, the advocates sued certain developers who had received zoning approvals for apartment communities that did not include affordable units.  The ordinance, which was signed into law in 1988, required subject developers to submit a plan of compliance for approval.  In lieu of submitting a plan, the City could enter into an agreement whereby a developer could make a voluntary cash contribution.  The trial court ruled in favor of the developers, finding that the ordinance was inconsistent with state law, the Fair Housing Act, and the procedures and guidelines promulgated by the Council on Affordable Housing (COAH).  The trial court also enjoined the City from enforcing the ordinance.

On appeal at the Appellate Division of the Superior Court of New Jersey, the advocates and the City argued that the trial court erred in holding that COAH was required to review all municipal affordable housing ordinances.  The Appellate Division agreed, finding that the Fair Housing Act and COAH did not require the City to submit its ordinance for approval by COAH before it became law.  The Appellate Division also found that the trial court had confused development fees, which were under COAH’s jurisdiction, with the payments developers could make in lieu of submitting a plan under the ordinance. The Appellate Division reversed the trial court’s decision invalidating the ordinance, and remanded the case to the trial court to adjudicate the remaining legal issues. 

On further appeal, the Appellate Division held that the City could enforce the ordinance against the specific developers, over the developers’ claims that they had detrimentally relied on the City’s failure to enforce the ordinance as to prior developments, and over the trial court’s holdings that the City could not under equitable estoppel and the doctrine of selective enforcement.

On April 4, 2023, the New Jersey Supreme Court denied the petition for certification for review.

The case is Fair Share Housing Center v. the Zoning Board of the City of Hoboken, No. A-1499-17 (Super. Ct. App. Div.).