PASCACK VALLEY—Mercer County Superior Court Judge Robert Lougy said on Dec. 20 that he will rule before Jan. 1, 2025, on whether to “pause” the fourth round of statewide affordable housing deadlines. He noted the urgency of a looming Jan. 31, 2025, deadline for towns to adopt an affordable housing obligation number.
Although the New Jersey Judiciary will be on holiday break, Lougy said he plans to issue his decision on the motion to stay these deadlines by year’s end, describing the request as “not an ask of small consequence.”
Following the hearing, Montvale Mayor Michael Ghassali wrote on Facebook, “The 26 plaintiffs—and 31 municipalities that have adopted resolutions to join our effort—are challenging the Fourth-Round affordable housing mandates because we believe the state’s current approach is simply not working and is unconstitutional. The massive burdens placed on municipalities, combined with the use of outdated and illogical numerical calculations, are gravely impacting towns across our state.”
Montvale joined eight other towns in filing a lawsuit on Sept. 9, challenging the fourth-round obligations. Since then, 26 towns have joined the case. The lawsuit questions key elements of the new affordable housing law, including its constitutional foundation and the roles of the Alternative Dispute Resolution Program and the administrative director of the courts.
Whatever Lougy decides on the stay, the broader lawsuit—filed in September and still active—challenges the constitutionality of the fourth round and its mechanisms.
During nearly two hours of oral arguments via Zoom, Lougy heard from Michael Collins, attorney for the Montvale-led coalition of 26 towns, and attorneys for two defendants: Levi Klinger-Christiansen of the state Attorney General’s Office and Adam Gordon of Fair Share Housing Center.
Both sides warned of potential “chaos” if their positions on the pause were not upheld. Extensive pre-hearing briefs, each over 100 pages, laid out the legal arguments.
Collins argued that the law’s Alternative Dispute Resolution Program exercises judicial powers improperly and is not truly optional, contrary to the state and Fair Share’s claims. He said the program’s structure and the law’s delegation of authority to the administrative director violate separation of powers. Collins also pointed to an “urban aid” exemption that absolves certain towns, such as Newark and Jersey City, of prospective affordable housing obligations, arguing this unfairly burdens others.
Klinger-Christiansen disputed these claims, asserting that towns would not lose immunity from builder’s remedy lawsuits by failing to submit an obligation number by Jan. 31. He said towns could file a declaratory judgment to preserve their zoning powers and immunity until July 1, 2025, when the fourth round begins.
He emphasized that the affordable housing program, established under the Fair Housing Act of 1985, is a constitutional requirement. “The focus of the law is not the Alternative Dispute Resolution Program or its structure, as plaintiffs contend, but rather ensuring towns meet their fair share of affordable housing obligations,” he said.
Fair Share Housing Center and the Attorney General’s Office argued that courts, including the state Supreme Court, have historically deferred to the Legislature on affordable housing issues.
Collins, given the last word, said a pause was reasonable given the constitutional questions raised. “Granting a pause is not an unreasonable thing,” he told the court.
The New Jersey Urban Mayors Association has filed a motion to intervene in the Montvale-led lawsuit. Lougy said he would rule on that motion by Jan. 3. Fair Share Housing Center has already been granted intervenor status.
Individuals interested in reviewing the legal briefs can create a free account on the New Jersey eCourts System. The Mercer County Superior Court Civil docket number is MER-L-001778-24.