Working for Smart Growth:
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Affordable Housing and Sprawl

August 2nd, 2002 by

  • Municipalities have always had a shield in hand to protect themselves from “builder remedy” lawsuits. They can develop and help implement their own affordable housing plans.
  • Municipalities that file affordable housing plans with the state are protected for 10 years from builder remedy suits. Yet barely half of the state’s municipalities (271) have filed such plans, opening themselves to legal enforcement, and the “bonus” housing that accompanies a builder’s remedy.
  • Builder’s remedies themselves are not a source of sprawl in New Jersey. Builders have won only eight of 13 cases brought before state courts. But the threat of lawsuits often prompts towns to approve sprawling development.

State Can Help Towns Help Themselves

Yesterday the State Supreme Court re-affirmed that all New Jersey towns have a constitutional obligation to provide housing for low- and moderate-income families. The Court also affirmed that builders are entitled to legal remedy against towns that fail to plan and help build such housing.

Municipalities are in control of whether builders remedy is used, or not. But the state can and must do more to help municipalities provide affordable housing and manage development.

The state must clarify and simplify today’s affordable housing system so that municipal obligations are simple and clear. One way is by using “growth share” and requiring towns to build affordable housing as a fixed percentage of growth already planned.

The state must also insist that the State Plan is followed when approval for new development is granted.

The legislature must provide more tools to municipalities for shaping development and protecting local resources.

New Jersey towns lack tools available to towns in other states for protecting their environment, tools such transfer of development rights, farmland zoning and mandatory clustering of development.

Finally, the Administration and the Legislature must work together to reform New Jersey’s property tax system, so that towns are not forced to prefer commercial development for its lower costs over affordable housing, and even housing in general.

Towns can indeed protect themselves from builders remedy suits. But it will take municipal, Administrative and Legislative leadership to stop sprawl and build affordable housing.


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