In a case that could reshape the look and feel of many New Jersey towns, the state Supreme Court heard arguments Wednesday on whether municipalities must zone for the many thousands of affordable-housing units that they did not zone for during the last 16 years.
If the high court rules that an obligation for that "gap period" exists, it could double or triple the number of affordable-housing units that some towns and cities must zone for by 2025.
In some of their questioning, justices seemed to be skeptical that the obligation could be avoided.
"Are you saying these people [in need of affordable housing] disappeared for 16 years?" asked Justice Faustino Fernandez-Vina.
Starting in 1999, the state agency charged with determining the "fair share" obligation of each municipality was unable to devise an acceptable formula, and relatively few affordable-housing units were built.
In February, an Ocean County judge opined in a case involving Barnegat Township that townships' housing obligations had accrued during the gap period.
Barnegat appealed, and in July the Appellate Division ruled that no such obligation had accrued. In September, however, the Supreme Court voided that ruling and agreed to hear an appeal of it.
Kevin Walsh, an attorney for the Fair Share Housing Center, on Wednesday urged the justices to overturn the Appellate Division ruling.
"Tens of thousands of poor households have been waiting" for the creation of affordable homes, Walsh said. "I appear on their behalf."
He said that while the Fair Housing Act of 1985 may have called on municipalities to zone for their "present and prospective" affordable-housing needs, numerous trial court judges and the former Council on Affordable Housing (COAH) repeatedly found that "those obligations are cumulative and gapless," and that the Legislature never challenged those positions.
The Appellate Division's July ruling rewards municipalities that failed to adopt equitable zoning regulations, Walsh said, and punishes those that did.
"That ruling should be rejected as cruel and inconsistent with the Fair Housing Act and Mount Laurel," Walsh said.
In 1975 and 1983, the Supreme Court declared, in decisions named after Mount Laurel Township, that the New Jersey Constitution bars municipalities from engaging in zoning that excludes higher-density housing developments that poor and middle-income households may afford.
In 1985, the Legislature created COAH to help towns and cities meet their affordable-housing obligations, but in March 2015, the Supreme Court declared the body to be dysfunctional and ordered it shut down. It then instructed municipalities to develop new housing plans and submit them to trial court judges for review.
The high court failed, however, to say whether municipalities' obligations had accrued during the gap period, and the question has been a matter of fierce debate for more than a year.
Walsh was followed by attorney Jeffrey R. Surenian, representing Barnegat Township. Surenian has also represented a large consortium of municipalities opposed to seeing a gap, or "retrospective," obligation imposed on them.
He urged the justices to look only at the intent of the legislature when it created the Fair Housing Act in 1985. He repeatedly reminded them that the act spoke only of "present and prospective" need.
"It was clearly forward-looking," he said. "The Appellate Division reached the proper conclusion when it said you can't have a retrospective obligation, because that's not what the plain language of the Fair Housing Act says.
"It's not your job to be a super-legislature," he admonished the justices, and urged them not to burden municipalities with affordable-housing obligations that he said lawmakers never intended.
But several justices questioned whether a strict construction of the law's language was appropriate in view of COAH's prolonged failure to devise a formula for calculating need.
"The Appellate Division said they don't fit into present or prospective need," Surenian said. "So they're not counted."
Justice Barry Albin sounded skeptical.
"The definitions of present need and prospective need were perfectly fine before there was a 16-year gap," he said. "Do you think the legislators who passed the Fair Housing Act ever expected that that piece of legislation would be continually noncompliant for 16 years?"
"They never said in their statute that it was cumulative," Surenian replied.
Much of the justices' questioning also centered on the definition of "present need" and the kinds of households that should be included in it.
Lawyers for the New Jersey State Builders Association, the New Jersey League of Municipalities, and the coalition of municipalities also addressed the court Wednesday. A dozen groups also submitted amicus briefs or letters to the court. Among these, the NAACP of New Jersey urged the court to reverse the appellate ruling, while the state Attorney General's Office urged it to sustain.
The Fair Share Housing Center, which has special intervenor status in affordable-housing matters, estimates the statewide obligation - including the gap years - at 200,000 units by 2025.
A planning group hired by the municipal consortium projects that statewide obligation at about 37,000, although a Middlesex County Superior Court judge called its analysis flawed.
Both Walsh and Surenian said after the 21/2-hour session that they could not predict how the court would rule. "It's always dangerous reading tea leaves," said Surenian. Walsh said he believed a decision might be handed down before the end of the year.
Richard T. Smith, president of the state chapter of the NAACP, told a news conference after arguments that the case "represents a serious threat to African American and Latin American families," and that if the justices did not affirm a gap obligation it would "lock in segregation for another generation."