NJ towns ask judge to throw out builders' lawsuit over affordable housing

Officials in more than 150 New Jersey towns say a prominent builders association has no business telling them how much affordable housing to develop.

Attorneys for the municipalities, including Upper Saddle River, Livingston and East Brunswick, are asking a judge to dismiss a wide-reaching lawsuit filed by the New Jersey Builders Association last month targeting 158 towns. It argues that the towns must go beyond what their local officials say is possible and commit to building more affordable housing.

The builders association’s legal action came after town officials asked the state to lower their affordable housing obligations under the Mount Laurel doctrine, established in a series of state Supreme Court decisions dating back to the 1970s that require each municipality to contribute its “fair share” of affordable housing.

New Jersey is gearing up for its next 10-year round of Mount Laurel development starting in July. State officials aim to build more than 84,000 new affordable homes across the Garden State by 2035. In October 2024, town officials received the state’s calculations for how many low-priced units their municipalities would be responsible for building. According to the Department of Community Affairs, the numbers were based on factors such as average income and available land.

As Gothamist reported, each town is being asked to build about 150 homes on average, though some have to build many more.

More than a quarter of the 440 towns that filed resolutions in January committing to the process also claimed that the state had miscalculated their total amounts of developable land and asked the state to reduce their affordable housing obligations.

In its legal challenge, the builders association said that granting the reductions would amount to about 14,000 fewer homes being built in the state. The trade group asked a panel of judges assigned to review each town’s filing to reject all the requests and order the towns to commit to the state’s original amounts.

The builders took their action a step further on March 5, asking Judge Thomas Miller, the chair of the special panel reviewing the disputes, to consolidate all 158 lawsuits into one case. The latest maneuver set off a flurry of activity from the towns’ attorneys asking for the builders’ challenge to be dismissed.

Attorney Edward Buzak, who represents Upper Saddle River, told the judge that the trade group did not provide “a scintilla” of evidence that the borough deviated from the state’s formula when it asked the state to lower its affordable housing obligation.

“We respectfully request that Your Honor recommend the dismissal of the [builders’] filing,” Buzak wrote to the judge.

Upper Saddle River officials have requested that their obligation for the next Mount Laurel round be reduced from 233 to 201 affordable homes. They claim the state erred when it estimated that the borough has 12 acres of developable land. The actual number is around six acres, according to a resolution passed in January by Council President Jonathan Ditkoff and other members of Upper Saddle River Council.

The builders association did not respond to a request for comment on the motions to dismiss.

The state’s panel of judges is working to resolve all disputes over the towns’ obligations by the end of the month.

Separately, the Fair Share Housing Center has filed challenges against 68 towns. The influential housing nonprofit has asked the panel of judges to redistribute the affordable housing targets for the 158 towns disputing their numbers so that New Jersey stays on track to build 84,000 new low-priced homes over the next decade. The group's executive director, Adam Gordon, said that could mean that some towns’ numbers go up.