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1. What is Affordable Housing?

It is an opportunity for households with low and moderate income, defined as 50% or less of median gross household income based on household size, or between 50% and 80% of median gross household income based on household size, respectively. In more general terms, to be eligible for an affordable unit, applicants must earn a limited amount of income and have limited assets to be qualified as either a low or moderate income household. Low or moderate income housing in the State of New Jersey is typically not “subsidized” housing.  

Rental and sales prices are determined by methodologies which are approved by court order and are below-market rents or prices. The rent or sale price is based upon a percentage of the designated income limits that can reasonably be allocated to housing costs within a particular household size. Affordable units are individually owned or rented and managed by private companies. Regulations establish a specific bedroom mix for the affordable units consisting of 1, 2, and 3-bedroom units.

2. Is the Township required to provide an opportunity for Affordable Housing units?

Yes. New Jersey municipalities are required to plan, zone and provide a “realistic opportunity” through their last use ordinances for the development of affordable housing. Failing to meet these requirements, set forth under the Southern Burlington County NAACP v. Mt. Laurel Twp. (Mount Laurel) decision, can subject the Township to builder’s remedy lawsuits.

3. What is a builder's remedy lawsuit?

A builder’s remedy lawsuit allows a developer to file suit to have a specific piece of property chosen by the builder rezoned to allow for the opportunity to construct housing at higher densities than a municipality would otherwise allow, provided that the developer provides a set aside of units affordable to low and moderate income households. A developer is entitled to a builder's remedy if (1) it succeeds in Mount Laurel litigation; (2) it proposes a project with a substantial amount of affordable housing, and (3) the site is suitable, i.e. the municipality fails to meet its burden of proving that the site is environmentally constrained or construction of the project would represent bad planning. Southern Burlington County NAACP v. Mt. Laurel Twp., 92 N.J. 158, 279–80 (1983).

A successful developer in a builder's remedy suit is entitled to a court ordered zoning designation, including all aspects of zoning such as density, setbacks, building heights, lot coverage, etc. to accommodate its proposed inclusionary project.  Municipalities in builder's remedy lawsuits may be held liable for the fees of a special master appointed by the court to assist in developing the zoning scheme on the affected property.

4. How can builder’s remedy lawsuits be avoided?

The only way a community can be protected from a builder’s remedy lawsuit is to take the initiative and prepare, approve and adopt a Housing Element and Fair Share Plan (HEFSP) that complies with the required obligations, submit that HEFSP to the court in a Declaratory Judgment action and receive a Judgment of Compliance/Repose from the Court. A Judgment of Compliance/Repose generally provides a ten-year period during which the Township would be protected from any future Builder Remedy Lawsuits so long as Millburn complies with the court approved HEFSP.  Southern Burlington County NAACP v. Mt. Laurel Twp., 92 N.J. 158, 291-92 (1983). Because housing obligations have been developed for a discrete period (most recently, 1999-2015), the courts are taking the view that there is a uniform ten-year period during which Judgments of Compliance/Repose are effective, (effective to July 1, 2025, irrespective of when that Judgment is obtained.)   Millburn Township adopted an HEFSP and filed its Declaratory Judgment action in court seeking a Judgment of Compliance and repose in March of 2018.

What is the Fair Share Housing Center?

The Fair Share Housing Center (FSHC) is a recognized affordable housing advocacy group that  has been heavily involved in monitoring NJ municipalities’ efforts to comply with affordable housing obligations. They are “interested parties” in virtually all affordable housing litigation.

5. Does Millburn have an Affordable Housing Plan?

Yes, the Planning Board has adopted and the Township has endorsed a HEFSP. Millburn is pursuing a Declaratory Judgment action before the Superior Court in Essex County with the expectation that the court will grant it a Judgment of Compliance/Repose. Also, Millburn has sought and obtained from the court temporary immunity from future builder remedy lawsuits as the Township works its works its way through its Declaratory Judgment matter.   

Link to plan: https://www.twp.millburn.nj.us/DocumentCenter/View/3397/Master-Plan-Amendment-2018-PDF?bidId

6. How likely is it that a municipality can successfully defend a builder’s remedy lawsuit?

Once a court determines that a municipality has not satisfied its constitutional obligations concerning the development of affordable housing, it is nearly impossible to “win” a subsequent builder’s remedy lawsuit. The municipality loses the presumption of validity of its zoning ordinances and the case proceeds with the underlying premise that the municipality is improperly preventing the development of affordable housing. As a result, when a builder’s remedy is granted, courts grant the developer the right to construct multi-family housing on its proposed site and relax the municipality’s density, height, bulk and setback standards as necessary to facilitate that development. In addition, that development will contain an affordable housing set-aside, typically between 15% and 20%. These decisions will be made by a judge upon the recommendation of a court-appointed master - not by Township officials.

7. Why are the courts in control of determining Millburn’s affordable housing obligation?

The Council on Affordable Housing (COAH) has failed to establish legally valid rules and numeric obligations for affordable housing since the second round of regulations expired in 1999. There have been numerous court battles between affordable housing advocates, the real estate developers' lobby, municipalities and COAH itself over how the rules should be formulated and the methodology by which local obligations should be established.

In March of 2015, the Supreme Court, after numerous attempts by  COAH to establish legally acceptable rules and the methodology to calculate each municipality’s affordable housing obligation, took back jurisdiction over all affordable housing issues and returned to the county trial courts the responsibilities of determining methodology, affordable housing obligations and compliance with the constitutional obligations of providing, through its land use ordinances, a realistic opportunity to construct affordable housing. This order stripped COAH of its administrative powers and forced participating towns into a situation where they must attempt to determine their own obligations. This process is ongoing and will likely continue through trial and appeals courts for years to come.

8. Will a court consider the economic impact to the community, including schools?

No. Courts will not consider the economic impact to a municipality, whether the impact is on schools or other infrastructure or other services. Although the Township of Millburn and the Millburn Board of Education have concerns with respect to the adverse impact development will have on our schools and traffic, the State of New Jersey and trial courts do not allow us to consider these factors when calculating our affordable housing obligation. Infrastructure such as water and sewer capacity can be considered by the court.

9. Why can’t the Township’s affordable housing litigation be discussed publicly?

As a litigation matter, the Township Committee discusses these issues in closed session meetings, in accordance with the requirements of the Open Public Meetings Act. Those closed session discussions help preserve the Committee’s ability to discuss litigation strategy and any pending settlement negotiations without compromising its position in the litigation or in any settlement negotiations. The Township understands the public’s desire to learn about all aspects of this important issue as it is evolving, but since the matter involves litigation, the Township is constrained to discuss the matter only in closed session meetings.

10. What opportunity would there be for public comment on the Township’s affordable housing Plan?

There was public notice and a public hearing when the Planning Board adopted the HEFSP last year. Furthermore, the Court will conduct a Fairness Hearing on any settlement agreement that is approved by the Township in builder’s remedy litigation (or later in its Declaratory Judgment lawsuit), and the Court will also conduct a Compliance Hearing on the new HEFSP. Comments may also be provided directly to the Court as part of the Fairness and/or Compliance hearings. The dates and times of the court hearings are publically noticed. Any ordinances that are adopted by the Township in order to implement any settlement agreement and/or the HEFSP will be subject to a public hearing before the Township Committee.

11. Where can I learn more about Millburn’s current Affordable Housing situation?

We invite you to view the Affordable Housing Forum conducted on November 7^th, 2017, where the Township Attorney, Planner, and Attorney for the Planning Board elaborate on these issues: https://videoplayer.telvue.com/player/dOq9Id2CeToUfMBbg2VGYDWPZt1fbkIL/playlists/1091/media/305584

12. What is a motion to intervene in the Township’s Housing Element and Fair Share Plan?

Developers who file a motion to intervene are asking the Court, which is handling affordable housing matters pertaining to a particular municipality, to be granted special status in the context of a Declaratory Judgment Action. The Court considers whether that potential intervenor can further advance the interests of low and moderate income households to obtain affordable housing, within the context of the Township’s Housing Element and Fair Share Plan. In Millburn’s case, temporary immunity has been granted to the municipality from builder’s remedy lawsuits while the Township pursues approval of its plan.

13. Where can I find information on 85 Woodland Road, LLC., et al. v. Township of Millburn, et al.?

Information on the action taken by 85 Woodland Road, LLC., et al. v. Township of Millburn, et al. may be found in our Affordable Housing Timeline/Summary (PDF). Ordinance related to the action may be found here:

• Ordinance 2542-19 - Zoning Ordinance - 85 Woodland Road/Public Hearing and Consideration of Adoption on 9/17/2019 (PDF)