Affordable Housing

The 2018 Housing Element and Fair Share Plan (HE&FSP) Element of the Master Plan sets forth the manner in which the City of Summit addresses its constitutional obligation to provide for affordable housing. While the state of the State’s determination of prospective (future) housing need continues to be fluid, given the fact that neither the Courts, COAH, nor the legislature have yet to develop a definitive set of housing-need numbers which are universally accepted, two sets of numbers have been promulgated. One is on behalf of a consortium of municipalities known as the Municipal Joint Defense Group, of which Summit is a part, and the other is on behalf of the Fair Share Housing Center (FSHC). Their statewide numbers vary dramatically, with the consultant for the municipal consortium (Econsult Solutions) estimating the City prospective affordable housing obligation is 183 units, while FSHC indicates the need is for 1,446 units.

Irrespective of those projected housing-need numbers, a Settlement Agreement reached between the City and FSHC has established that the City has a thirty-six unit realistic development potential (RDP), and an unaddressed Unmet Need.

The following Plan details the manner in which the City intends to address its affordable housing obligation. Specific details on how this obligation was calculated, the extent to which the City can meet this obligation, background data on the community’s socio-economic and demographic characteristics, and information on the affordable housing process and the manner in which this Plan is to be implemented, are contained in the body of this report.

Overview

The following section provides a brief introduction to the 2016 Housing Element and Fair Share Plan for the City of Summit, and includes an overview of the affordable housing issue, the State’s Council on Affordable Housing (COAH), and the City’s historic response to its affordable housing obligations.

Historic Background

In 1975 the New Jersey Supreme Court determined, in So. Burlington Cty. NAACP v. Borough of Mount Laurel (Mount Laurel I) that every developing municipality in New Jersey had an affirmative obligation to provide for its fair share of affordable housing. In a subsequent decision in 1983 (Mount Laurel II), the Court acknowledged that the vast majority of municipalities had ignored this constitutional obligation. The Court in that decision refined this obligation to focus primarily on those municipalities that had portions of their boundaries within the growth area as delineated in a document that was the precursor to the State Development and Redevelopment Plan. The Court also called for the state legislature to enact legislation that would save municipalities from the burden of having the courts determine their affordable housing needs. The result of this decision was the adoption of the Fair Housing Act in 1985 as well as the creation of the New Jersey Council on Affordable Housing (COAH), which became the state agency responsible for overseeing the manner in which New Jersey’s municipalities address their low and moderate income housing needs.

COAH proceeded to adopt regulations for the First Round obligation, which covered the years 1987 to 1993. It also established Second Round housing-need numbers that cumulatively covered the years 1987 through 1999. Under both the First and Second Rounds, COAH utilized what is commonly referred to as the “fair share” methodology.

COAH utilized a different methodology, known as “growth share,” beginning with its efforts to prepare Third Round housing-need numbers. The Third Round substantive and procedural rules were first adopted in 2004. These regulations were challenged and in January 2007, the Appellate Division invalidated various aspects of them and remanded considerable portions of the rules to COAH with the directive to adopt revised rules.

In May 2008, COAH adopted revised Third Round regulations which were published and became effective on June 2, 2008. Coincident to this adoption, COAH proposed amendments to the rules they had just adopted, which subsequently went into effect in October 2008.

The rules and regulations adopted in 2008 were subsequently challenged, and in an October 2010 decision the Appellate Division invalidated the Growth Share methodology, and also indicated that COAH should adopt regulations pursuant to the Fair Share methodology utilized in Rounds One and Two. The Supreme Court affirmed this decision in September 2013, invalidating the third iteration of the Third Round regulations and sustaining the invalidation of growth share, and directing COAH to adopt new regulations pursuant to the methodology utilized in Rounds One and Two.

In October 2014 COAH failed to adopt their newly revised Third Round regulations, deadlocking with a 3-3 vote. The Fair Share Housing Center, who was a party in both the 2010 and 2013 cases, responded by filing a motion in aid of litigants’ rights with the New Jersey Supreme Court. The Court heard the motion in January 2015. On March 20, 2015, the Court ruled that COAH was effectively dysfunctional, and consequently returned jurisdiction of affordable housing issues back to the trial courts where it had originally been prior to the creation of COAH in 1986.

The Court decision has now effectively created a process for municipalities like Summit, that had participated in the process but due to the inertia of COAH never obtained Third Round substantive certification of their HE&FSP. This process allows municipalities to file a declaratory judgment seeking to declare their HE&FSP constitutionally compliant or receive temporary immunity from affordable housing builders remedy lawsuits while they prepare a new or revised HE&FSP to ensure their plan continues to affirmatively address their local housing need, as may be adjusted by new housing-need numbers promulgated by the Court. The City filed a declaratory judgment and a brief in support of a motion for temporary immunity with the Court, and subsequently supported a Settlement Agreement with FSHC with respect to its affordable housing obligation and manner in which this obligation may be addressed. This settlement is detailed in the body of this report.

City’s Historic Responses to its Affordable Housing Obligation 

The City of Summit has prepzred a number of Housing Elements and Fair Share Plans over the years to address its affordable housing obligations. As noted above, COAH had originally adopted a ‘fair share’ methodology to determine housing-need numbers for all municipalities throughout the state in 1987 and again in 1994. The adopted, combined first and second round housing need numbers for Summit covering the years 1987-1999 indicated that the City had a 171 unit obligation.

The City’s adopted Plans include a Plan adopted and also approved by the Court in 1991, followed by Plans adopted in 2000, 2005, 2007 and again in 2008, all in response to the ever-changing COAH determinations of housing need.

Prospective Need Affordable Housing Obligation and City’s Response 

The state of the State’s determination of prospective need continues to be fluid, given the fact that neither the Courts, COAH, nor the legislature have yet to develop a definitive set of housing-need numbers which are universally accepted. Two sets of numbers have been promulgated. These include numbers prepared by Econsult Solutions on behalf of a consortium of municipalities known as the Municipal Joint Defense Group, of which Summit is a part, and numbers prepared by Dr. David Kinsey on behalf of the Fair Share Housing Center. Their statewide affordable housing-need numbers vary dramatically. Econsult estimated a statewide affordable housing need of approximately 54,000 units while FSHC estimated the need to be 201,000 units. For the City of Summit, their estimates are as follows: