Passaic County New Jersey

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Affordable Housing

Background Information

New Jersey’s affordable housing policy dates back to the mid-1970s with a series of New Jersey court decisions that began in 1975 and which established what has become known as the Mt. Laurel Doctrine. In Southern Burlington County NAACP v. Township of Mt. Laurel (1975), the New Jersey Supreme Court concluded “that every such municipality must, by its land use regulations, presumptively make realistically possible an appropriate variety and choice of housing. More specifically, presumptively it cannot foreclose the opportunity of the classes of people mentioned for low and moderate-income housing and in its regulations must affirmatively afford that opportunity.

In 1985, and in response to the Supreme Court’s Mt. Laurel decision, the State of New Jersey passed the Fair Housing Act (“FHA”) in order to implement the Court’s decisions through an administrative process. The Fair Housing Act created the Council on Affordable Housing (COAH) to oversee this process. Under the Mt. Laurel Doctrine and the Fair Housing Act, housing developers may bring suit against a municipality, through what has become known as a Builder’s Remedy lawsuit, to force a municipality to allow for the construction of a housing development. Municipalities are able to avoid these potential lawsuits by proactively adopting a constitutionally compliant Mt. Laurel a/k/a “Affordability Plan” in the form of a component of the municipality’s Master Plan, called the “Housing Element and Fair Share Plan”. The FHA provided an administrative mechanism for the municipality’s proposed Plan to be deemed constitutionally compliant by way of submission to and approval by COAH. The COAH approval is known as “substantive certification.” Once substantive certification is granted by COAH, the municipality is granted a period of immunity from Builder’s Remedy lawsuits.

Before COAH could determine which municipalities had met their constitutional obligation and thus eligible for immunity, COAH needed to understand what housing obligation the State as a whole and municipalities individually would be facing over a certain defined period of time, called “Rounds” or “Housing Rounds”. The initial, or “First Round/Round 1” was set at a 6 year period. Complex calculations projecting population growth, population distribution, and income distribution were developed to determine the affordable housing obligation for each municipality. These calculations served as the basis for COAH’s Round 1 (1987-1993) and Round 2 (1993-1999) rules. Third Round rules were expected to begin in 1999, however, they were subject to numerous delays from COAH. Beginning in 2004, COAH adopted a new methodology to determine a municipality’s affordable housing obligation: Growth Share. Instead of the complex calculations used in Round 1 and Round 2, Growth Share would establish an affordable housing obligation based upon the actual growth of a municipality in population and employment. While simpler and cleaner as a methodology, Growth Share was flawed: a municipality could avoid an affordable housing obligation by preventing development. The New Jersey Appellate Division rejected the use of the Growth Share methodology in 2007 and 2010, and COAH was obligated to adopt new affordable housing rules.

After further delays in adopting Round Three rules, the New Jersey Supreme Court in the case of In re the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing (2015), concluded that COAH had failed its mission and that “Constitutional compliance presently cannot be evaluated under COAH’s jurisdiction; the FHA’s exhaustion-of-administrative-remedies requirement has been rendered futile,” and “Therefore… we hold that the courts may resume their role as the forum of first instance for evaluating municipal compliance with Mount Laurel obligations…” Thus began the current process by which compliance with Mt. Laurel obligations and certification thereof occurred through litigation.

The Township is currently working to settle its Third Round Mt. Laurel obligation and to that end has filed an application with the Court in a matter captioned In the Matter of the Application of the Township of Wayne, Docket No. PAS-L-2396-15.

In regards to the Township’s historic and ongoing efforts to meet its constitutional obligation, please see the following announcements, presentations, and documents:

Ongoing Round Three Effort

Prior Events and Information
The Mt. Laurel Committee hosted a public information session on February 24, 2021

The Mt. Laurel Committee hosted a public information session on September 9, 2020

The Mt. Laurel Committee hosted a public information session on February 26, 2020

Fair Share Housing Center

Avalon Bay

Wayne PSC LLC/Preakness Shopping Center

Waynebridge Plaza, LLC

K. Hovnanian North Jersey Acquisitions LLC (Rockledge Farm)

Wayne Property Holdings, LLC (GAF Site)

Housing’s Impact on School Aged Children

The Township has received questions from residents voicing their concern regarding the potential of the affordable housing projects creating an burden on the Wayne Public Schools. Under the State’s Mt. Laurel Doctrine, municipalities and school systems are required to accommodate changes in the school aged population resulting from new housing, and any potential impacts on the school systems cannot serve as a basis for relieving municipalities of their constitutional obligation to provide a realistic opportunity to create affordable housing. While the Township cannot use potential impacts on the Wayne Public Schools as a means to object to its constitutional obligation, the Township and the Board of Education can begin to anticipate and plan for any impacts.

There are two key New Jersey based studies analyzing the number of children that reside in different types of residential units (ie. single family, townhouse, apartment). Starting in the 1970s, the Rutgers Edward J. Bloustein School of Planning And Public Policy began studying this issue. The most recent Bloustein study was conducted by Alexandru Voicu and David Listokin, published in November 2018, and is entitled “Who Lives in New Jersey Housing?” This study uses data from the U.S. Census Bureau’s American Community Survey to analyze the number of children generated by a variety of characteristics of housing, including housing type, number of bedrooms, age of housing, and income of resident.

The Rutgers Center for Real Estate (RCRE), conducted a separate study which was released in July 2018. This study was conducted by Rutgers professors Morris A. Davis, Ph.D., and David Frame, Ph.D., and real estate developers Ronald S. Ladell of Avalon Bay and Debra Tantleff of Tatum Realty. Whereas the Bloustein study used data from the American Community Survey, the RCRE study used survey data gathered from developers and property managers. This study also looked at the number of children generated by a variety of characteristics of housing, including housing type, number of bedrooms, age of housing, and income of resident.

Finally, the Wayne Township Board of Education is required to prepare a Long Range Facility Plan to ensure the Wayne Public Schools have sufficient facilities for the Township’s school aged population. Drafting of a Long Range Facility Plan requires a demographic analysis and projections of population growth to be conducted by a qualified demographer. The most recent demographic analysis conducted on behalf of the Wayne Township Board of Education was prepared by Whitehall Associates, Inc. and is dated June 20, 2018. Table 4-1, 4-2, and 4-3 of this analysis looks at the potential impact of residential development within the Township on enrollments in the Wayne Public Schools based on different scenarios of growth.

These three documents are provided below to allow the public to have a better understanding of the potential impact of additional housing development on the Wayne Public Schools.