NJ Court Opens Town To Affordable Housing Suits

August 7, 2015 – In The News

Henry L. Kent-Smith and Irina B. Elgart were featured in the Law360 article, “NJ Court Opens Town To Affordable Housing Suits.” Full text can be found in the August 7, 2015, issue, but a synopsis is below.

Last week, a New Jersey appeals court agreed that Marlboro Township failed to address its affordable housing duties and that the township is subject to developer lawsuits as a result of a previous administration decision.

The three-judge panel upheld the now-defunct Council on Affordable Housing's (COAH) 2010 dismissal of the township from the agency's jurisdiction. The COAH, whose oversight of affordable housing compliance has been supplanted by the courts, had sided with developers and found that Marlboro avoided its obligations as part of different rounds of affordable housing regulations.

The affordable housing landscape was turned on its head when in March, the New Jersey Supreme Court ruled that towns must go to court for approval of their affordable housing plans because the COAH repeatedly failed to adopt valid regulations. In addition to delaying the decision's effective date by 90 days, the state supreme court gave municipalities that either secured certification from the COAH under voided third-round rules or had “participating” status with the agency, another 30 days to seek judicial review of their housing plans before others could sue.

“This decision will lift the stay,” he said. “It will automatically allow for the reinstatement of our claims against the town, and they're going to move in the normal course outside of the other declaratory judgment actions that you see other towns filing in the wake of the Supreme Court's decision.”

Ashbel Associates LLC, Pallu Associates LLC, Gihon Associates LLC, Great River Corp., Elon Associates LLC and Windridge Manor LLC are represented by Henry L. Kent-Smith and Irina B. Elgart of Fox Rothschild LLP in this case.