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In Re Fort Monmouth Reuse and Redevelopment Plan

A-0924-08T1 (N.J. Super. App. Div. 2010) (Unpublished)

AFFORDABLE HOUSING — Where a planning authority has specific statutory obligations with regard to affordable housing, it must provide a realistic opportunity for affordable housing as required by its authorizing legislation and the Fair Housing Act.

An army base extended over three municipalities. The base was scheduled to close in one year, and because of concerns of possible adverse effects from its closure on the three host municipalities, the New Jersey Legislature enacted the Fort Monmouth Economic Revitalization Planning Authority Act (FMERPA). The Act called for a comprehensive revitalization of the property that could lead to creation of employment and other business opportunities. To achieve this goal, the Legislature created the Authority to develop a comprehensive conversion and revitalization plan. The plan was to include land use and development proposals employing maps, diagrams, and texts.

In addition, the Authority was entrusted, under the authority of amendments to the Fair Housing Act, to identify and coordinate regional affordable housing opportunities in cooperation with the host municipalities. In fulfillment of that responsibility, after a public meeting to discuss its obligation to provide affordable housing, the Authority planned that 20% of proposed residential units would be constructed as affordable housing to meet the Council on Affordable Housing’s (COAH’s) low and moderate income housing requirements. A proposed memorandum of understanding from the Department of Community Affairs to the Authority, which established a framework for COAH compliance, was never executed. Although the Authority adopted its plan, it had no role in the preparation or municipal approval of the COAH fair share plans submitted by the three host communities for their third round compliance.

A fair share advocacy group appealed the Authority’s adoption of its plan, arguing that the plan violated the Authority’s enabling legislation and all fair share housing jurisprudence. The Appellate Division first held that in order to have met its growth share obligation under COAH’s third round of compliance, the Authority was to have provided for the development of one affordable housing unit for every four new market-rate residential units constructed, plus one affordable unit for every sixteen newly created jobs.

The Authority also had specific statutory obligations with regard to affordable housing – e.g., to develop a comprehensive conversion and revitalization plan, establish a housing advisory committee, and identify and coordinate regional affordable housing opportunities in cooperation with municipalities. The Court found that the Authority failed to comply with these obligations because it failed to provide a realistic opportunity for affordable housing. Therefore, it reversed and remanded the matter for the Authority to consider and coordinate the affordable housing issues as required by FMERPA and the Fair Housing Act.


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