The latest fight raging in the decades-long struggle over affordable housing is whether or not municipalities should be directed to provide enough homes to retroactively cover the 16-year period when the mandate was in limbo.

Towns, builders and housing activists should have an answer soon, as the state Supreme Court heard arguments in the case Wednesday. The dispute, which originated in Ocean County, will easily amount to a difference of tens of thousands of housing units statewide.

From 1999 through 2015, New Jersey didn’t have in place valid rules for determining how much affordable housing towns were legally required to accommodate. The courts are back in charge now – but there are arguments over whether the housing tally should go back and cover those 16 years.

Kevin Walsh, executive director of Fair Share Housing Center, said it must.

“There’s no precedent for constitutional obligations eviscerating because of bureaucratic delays,” Walsh said.

“These people are real. Their needs are real. The Legislature intended their needs to be met. It couldn’t possibly have imagined something that would lead to a 16-year hiatus,” Walsh said. “This court couldn’t possibly have intended for the Mount Laurel doctrine to go unenforced for longer than it has been enforced.”

Jonathan Drill, an attorney for a group of towns, told justices that adding an obligation for the period from 1999 to 2015 would be unfair.

“To include the gap in prospective need, even though you’re going to say, no, that’s not your intent, it is punishing the municipality,” Drill said.

Jeffrey Surenian, an attorney representing a group of towns that includes Barnegat Township, the plaintiff in the case before the court, said judges should stick with the language of the law. He said that includes a present need based on the number of substandard, overcrowded units, plus a projection of future needs.

“The plain language of the legislation said 10 years, not 26 years. The plain language of the legislation said based upon a projection, future, of growth and development that is reasonably likely to occur, not also based upon a report of development and growth that actually has occurred,” Surenian said.

A Superior Court judge had ruled that the obligation should take into account the gap period. An appellate court reversed that, and the Supreme Court took the case to decide the issue statewide.

“If you conclude as the appellate court did that what they intended was plain on its face, it’s not your job to be the super-Legislature. It’s not your job to rewrite the Fair Housing Act,” Surenian said.

Thomas Carroll, a land use attorney for the New Jersey State Builders Association, said the needs for additional housing indeed grew during the years the Council on Affordable Housing couldn’t come up with valid rules.

“We’ve had this 17-year period of near-paralysis that has been very harmful to the building community and in turn has been harmful to the economy,” Carroll said.

“Builders know that there is that large, unmet meet for affordable housing. They also know that by and large they don’t have the zoning to provide it,” he said.

Justices didn’t indicate how they will rule, but a number seemed skeptical that any unmet housing needs that built up from 1999 to 2015 couldn’t be addressed through calculations of either present or projected housing needs.

“Are you saying that there’s no obligation —” asked Associate Justice Walter Timpone.

“Yes,” Surenian interjected.

“—on the part of those municipalities to do anything over 17 years?” Timpone continued.

Surenian started to answer but was cut off.

“So those people for 16 years don’t count?” said Associate Justice Faustino Fernandez-Vina. “They disappear from the map, is that correct? Is that your interpretation?”

“I’m saying that – yes.”

“I don’t want you to say, I want you to answer my question,” Fernandez-Vina said.

“Yes,” said Surenian.


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Michael Symons is State House bureau chief for New Jersey 101.5 and the editor of New Jersey: Decoded. Follow @NJDecoded on Twitter and Facebook. Contact him at michael.symons@townsquaremedia.com.