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Tomu Development Co., Inc. v. Borough of Carlstadt

2006 WL 1375222 (N.J. Super. Law. Div. 2006) (Unpublished)

AFFORDABLE HOUSING; REMEDIES — A court appoints monitors whose role it is to adopt rules in lieu of zoning, land use, and development ordinances for a municipality and the municipality is ordered to adopt, by ordinance, the monitor’s rules as that municipality’s land use ordinance because the municipality persistently neglected its constitutional obligation to provide housing for their unhoused and underhoused poor.

Six months before this case came before the Court, the same court ruled that two municipalities had neglected their constitutional obligations to provide housing for their respective unhoused and underhoused poor. Each was given an opportunity to satisfy its obligations. When governments breach their duty to be as fair to the poor as they are to the rich in providing housing opportunities, they have the burden of proving compliance with a court’s curative instructions. Here, the same court previously ordered each municipality to increase its housing supply available to the poor and to adopt constitutionally effective zoning ordinances. Although both municipalities engaged in some legislative activity and amended their respective zoning ordinances, both municipalities still failed to address their rehabilitation obligations. Each municipality claimed an intention to take further action to comply with the Court’s earlier decision.

Although each municipality intended to participate in a rehabilitation program, neither actually took affirmative steps toward rehabilitating its housing. According to the Court, it was no answer to their default that the municipalities intended on complying with their rehabilitation requirements. As to one municipality’s new construction quota, it failed to designate sites and prove those sites were available, suitable, capable of development, and approved for development. If a municipality claims an intention to use undeveloped land to house its poor, then it must demonstrate the likely yield of affordable housing. If a municipality plans to redevelop property, it must qualify such property as a likely candidate for actual housing construction. Accordingly, the Court ordered that the municipalities’ new construction obligations must be the subject of planning initiatives (whether in the form of a redevelopment ordinance, a development fee ordinance, or an apartments-in-a-developed-area ordinance) designed to capture affordable housing opportunities on any land subject to development, and the initiatives must indicate the likely yield of affordable housing units. The use of a simplistic overlay zone that fails to indicate the likely yield of affordable housing units does not satisfy the municipality’s obligation to provide a specific mechanism to capture land for construction of affordable housing units.

Because the municipalities failed to comply with the Court’s previous order, the Court appointed independent judicial monitors for each municipality. Each municipality was prohibited from issuing zoning permits, building permits or any form of authorization for use or development of land without first obtaining its monitor’s approval. Existing land use, zoning, and development ordinances were invalid, except for existing structures. Each monitor was told to adopt rules in lieu of zoning, land use, and development ordinances, and each municipality was ordered to adopt, by ordinance, the monitor’s rules as that municipality’s land use ordinance. All applications for development, requests for land use or building permits, requests for interpretations, and appeals otherwise within the jurisdiction of the municipalities’ planning boards, boards of adjustment, or other official would require the monitor’s approval. Each monitor was directed to adopt a formal Housing Element and Fair Share Plan, which each municipality were ordered to adopt and implement. Both municipalities were prohibited from engaging in any conduct in connection to any development within the jurisdiction of the New Jersey Meadowlands Commission. Each monitor was directed to act on behalf of the municipalities and to be an advocate for the creation of affordable housing in those areas subject to the jurisdiction of the New Jersey Meadowlands Commission. All elected municipal officials were required to read Suburbs Under Seige by Charles M. Haar.

Because neither municipality met its constitutional obligations and neither complied with the FHA, including its Council on Affordable Housing obligations, the Court rejected the municipalities’ applications for a judgment for repose.


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