Montgomery Township Grapples with Affordable Housing Obligations Under New Law

MONTGOMERY TOWNSHIP — The clock is ticking for Montgomery Township to meet its affordable housing obligations under New Jersey’s new framework, signed into law by Governor Phil Murphy on March 20, 2024.

The law, P.L.2024, c.2, revamps the process for calculating and enforcing municipal housing requirements in alignment with the Mount Laurel doctrine and the Fair Housing Act.

The Department of Community Affairs (DCA) recently released its fourth-round methodology, covering obligations from 2025 to 2035. For Montgomery Township, this means adopting a resolution by January 31, 2025, to outline its present and prospective affordable housing obligations, as calculated by DCA. Township Planner Michael Sullivan, of Clarke Caton Hintz, presented the implications of the new law at Thursday’s Township Committee meeting, describing it as “uncertain and contradictory.”

What the New Law Requires
The DCA’s report details how it calculated the state’s regional housing needs and distributed those to individual municipalities using three primary factors:

1. Equalized Non-Residential Valuation: Changes in non-residential property value from 1999-2023 as a percentage of regional change in value. Non-residential property value growth is used as a proxy for employment growth. Relatively more employment growth equals a higher allocation of regional prospective need.
2. Income Capacity: Montgomery’s income capacity factor is 4.16%. The formula used is the average of two measures: Montgomery’s share of the sum of the difference between every Region 3 municipality’s median household income and a household income floor that is $100 less than the lowest median household income in the region, and Montgomery’s share of the sum of the difference between every Region 3 municipality’s median household income and a household income floor that is $100 less than the lowest median household income in the region, weighted by the number of households.
3. Land Capacity: Accounting for available space while excluding preserved farmland and open space.

Montgomery’s Median Household Income: $224,185
Number of Households in Montgomery: 8,102
Region 3’s Lowest Median Household Income: $56,239
Region 3’s Household Income Floor: $56,139

Montgomery’s Income Capacity:
$224,185 – $56,139 = $168,046
Montgomery’s Municipal Income Capacity: $168,046 x 8,102 = $1,361,508,692

Montgomery’s Total Acreage of Developable Land: 202 acres
Montgomery’s Land Capacity Factor: 1.95%

What This Means for Montgomery
For Montgomery Township, this methodology results in a prospective need obligation of 260 affordable housing units. Factoring in bonus credits and existing deed-restricted units, Montgomery’s adjusted target is 195 new units. New units, however, do not necessarily mean new construction; extended deed restrictions or reintroducing older units into compliance could also count toward the total.

Critical Deadlines and Compliance Risks
Township Attorney Wendy Rubinstein-Quiroga emphasized the importance of meeting deadlines and maintaining compliance to avoid costly legal battles. Mr. Sullivan added, “These lawsuits, now commonly referred to as exclusionary zoning lawsuits, allow developers to bypass municipal zoning laws.” Losing immunity to these lawsuits means the township essentially loses control over all zoning.

High Stakes and Potential Consequences
Failure to meet compliance deadlines could result in severe consequences, according to Sullivan:

• Increased Obligations: A court challenge could lead to higher housing obligations.
• Loss of Planning Board Oversight: Courts could appoint external oversight, limiting review of development plans to basic health and safety requirements. Features like tree buffers and aesthetic considerations—things that make a neighborhood look nice—would be at the developer’s discretion.

Sullivan also highlighted the importance of documenting every affordable unit to mitigate risks.

Committee Member Patricia Taylor-Todd raised questions about potential retroactive enforcement. “Can the state conduct a ‘look back’ and add more units due to past non-compliance?” she asked. While Sullivan acknowledged this as a possibility, he stressed that meeting current obligations would provide significant legal protection.

Challenges Ahead
Sullivan underscored the complexity of the process, noting discrepancies in the law and its implementation. Developers retain the right to challenge the township’s plan, adding further uncertainty.

The next step for Montgomery is clear: adopt a binding resolution by January 31, 2025, outlining its fair share plan. Any challenges must be filed by February 28, and any court decisions on disputes are due by March 31.

Headline News Montgomery reached out to Mayor Singh for information regarding publication of Montgomery’s plan. As of this publishing, we have not heard back.page