Affordable Housing

Satisfying our Constitutional Obligation

In 1975, the New Jersey Supreme Court decided the Mt. Laurel I case, which determined New Jersey municipalities had a constitutional obligation to provide a realistic opportunity for the construction of low and moderate income housing.  In 1985, the Fair Housing Act was adopted, which created a state administrative agency known as the Council on Affordable Housing (COAH). COAH was responsible for reviewing and approving a municipality’s plan to satisfy its constitutional obligation.  

COAH failed to adopt regulations regarding how a municipality’s obligation would be satisfied, so in 2015 the New Jersey Supreme Court decided the Mt. Laurel IV decision, which directed municipalities to seek judicial approval of its affordable housing plan.  

Declaratory Judgment

Moorestown Township filed a Declaratory Judgment lawsuit on July 8, 2015 that sought a Judgment confirming the township has properly discharged its constitutional obligation. Fair Share Housing Center (FSHC) represented the interests of the affordable housing community.  

This lawsuit was settled by the execution of a March 16, 2018 settlement agreement between the township and FSHC, which set the township’s obligation at 1,167 units.  

However, because the township does not have sufficient land to build the entire obligation, a Vacant Land Adjustment analysis was performed, which determined the Realistic Development Potential (RDP) of the available land was 606 units.  The settlement agreement provided various mechanisms for the satisfaction of the RDP by a combination of extensions of expiring controls or credit for existing units, development of new units, and maximization of available bonus credits.  The 561 unit difference between the obligation and the RDP is referred to as the Unmet Need, which required various other compliance mechanisms.  

Calculation of satisfaction of obligation as per settlement agreement: 

          117          Existing units or extension of expiring controls

          337         New units to be created

    +    152          Bonus credits (maximum available)

          606         Total RDP obligation

The original settlement agreement also required a portion of the 561 unit Unmet Need be addressed by adopting overlay zoning that would permit up to 303 new residential units at existing developed commercial properties with a 20% affordable set aside as follows:

          213         Moorestown Mall (1,065 total units; 20% set aside)

          78          K-Mart Shopping Center (390 total units; 20% set aside)

          12           Lenola Shopping Center (60 total units; 20% set aside)

Final Judgment

After the settlement was entered into, and prior to entry of a Final Judgment, there were changes in circumstances that resulted in minor changes to compliance mechanisms, as well as changes that revised the RDP. These included:

• The Zoning Board of Adjustment approved a use variance permitting a mixed use (commercial and 26 total, 4 affordable, unit residential) development on property at the intersection of Cottage and Camden Avenues (RDP increased by 4).  
• The Diocese of Trenton notified its property on Centerton Road was inadvertently not identified as available for development when the Vacant Land Adjustment Analysis was completed, resulting in an agreement to zone that 17.8 acre property to permit a 20% inclusionary development 83 total, 17 affordable units (RDP increased by 17).  
• Substitution of the Nagle property with a similarly sized parcel of property owned by Lockheed Martin on Borton Landing Road, and an adjustment to the percentage of affordable units on the Nagle property from 30% to 50% (no change to RDP, but a significant increase in the yield of affordable units from the property);   
• Replacement of the original proposed site of the Pennrose development with the property located in Harper Drive (since this resulted in the development of a parcel of property not planned to be developed, this resulted in a 6 unit increase in RDP).

The Final Judgment of Compliance and Repose entered on May 10, 2022 differed from the original settlement agreement in the following respects:

Calculation of satisfaction of obligation as per Final Judgment:

          140     Existing units or extensions of expiring controls 

          338     New units to be created

     +   159     Bonus credits (maximum available)

          633     Total RDP obligation

          (4 Surplus units)