N.J. Supreme Court: Towns Must Build More Affordable Housing

The Avalon Bay development on Witherspoon Street brings 56 affordable units to Princeton. The developer took the municipality to court after the planning board rejected the application.

The New Jersey Supreme Court ruled Wednesday that municipalities must offer more affordable housing for poor and middle-class families whose needs were ignored during a 16-year gap period when the state failed to calculate the towns’ fair-share housing obligations.

The court did not specify the number of units that must be built statewide or endorse a formula for calculating  municipalities’ obligations.

“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,” said the court in its 32-page ruling.

“We do not discount the possibility that the executive branch agency will resurrect and operate constitutionally,” the court said. “Additionally, we recognize, as we have before, that the legislature is not foreclosed from considering alternative methods for calculating and assigning a municipal fair share of affordable housing, and to that end, we welcome legislative attention to this important social and economic constitutional matter.”

The Supreme Court ruling expanded the definition of “present need” for affordable housing to include a gap calculation. Towns are currently required to determine both their present and future needs for affordable housing over the next decade, but “present need” means an assessment of substandard housing.

“A present-need analysis therefore must be expanded in current circumstances,” said the court. “It must include, in addition to a calculation of overcrowded and deficient housing units, an analytic component that addresses the affordable housing need of low-and moderate-income households created since 1999, provided that the households remain income-eligible and situated in New Jersey, and are not calculated in a way that includes persons now deceased or whose households may be already captured through the historic practice of assessing deficient housing units within the municipality.”


In 1975, the Supreme Court issued a landmark ruling called Mount Laurel declaring that zoning that excludes low and middle-income households violates the state constitution. In 1983, the court affirmed and expanded the decision in a second opinion known as Mount Laurel II.

The New Jersey Legislature encoded the rulings into the Fair Housing Act, and created the Council on Affordable Housing (COAH) to help municipalities meet their fair-share obligations. But COAH failed to come up with an acceptable formula for calculating the proper number of affordable units for each town. In 2015, the Supreme Court dissolved COAH and ordered all municipalities with affordable-housing obligations to submit new plans to county courts by the end of the year.

But the Fair Share Housing Center, the Cherry Hill-based non-profit that advocates for affordable housing in the state, argued that towns still had an obligation from the 16-year gap period, and claimed that municipalities statewide needed to zone for more than 200,000 units by 2025. A report commissioned by a coalition of municipalities, however, estimated the statewide obligation to be just over 35,000 units.

Municipalities challenged their affordable housing obligation numbers, and the case made its way through the New Jersey courts.

About 330 towns are still engaged in negotiations regarding their fair-share requirements. Almost 100 towns have reached settlements, agreeing to zone for 30,000 affordable units by 2025. Princeton is one of six municipalities in Mercer County challenging its affordable housing obligations in court. East Windsor, West Windsor, Lawrenceville, Hopewell,and Robbinsville are also plaintiffs in the case that is expected to run until March. Ewing and Hamilton have already settled.