Affordable Housing

In 1975, the New Jersey Supreme Court issued a landmark ruling in Southern Burlington County NAACP v. Township of Mount Laurel, holding that municipalities may not use zoning laws to exclude low and moderate-income families. The Court reaffirmed and strengthened that principle in Southern Burlington County NAACP v. Township of Mount Laurel, commonly known as the Mt. Laurel II decision.

Together, these rulings established what is now known as the “Mt. Laurel doctrine.” The Court declared that municipal land use regulations that effectively prevent affordable housing opportunities for lower- and middle-income households are unconstitutional. Every municipality in New Jersey must plan, zone, and take affirmative steps to provide a “realistic opportunity” for its fair share of the region’s affordable housing need.

Over time, the State refined how those obligations are calculated and enforced. Under the New Jersey Fair Housing Act (N.J.S.A. 52:27D-310), municipalities must address their affordable housing responsibilities through formal planning mechanisms. Initially, this process was overseen administratively. When oversight shifted back to the courts, developers were permitted to seek intervenor status. As intervenors, developers could participate directly in court proceedings, often proposing specific projects that would allow a municipality to satisfy its affordable housing obligation. In practical terms, the developer brings land, financing, and a development plan, while the municipality brings its zoning authority and compliance framework.

Affordable Housing Plans and Supporting Documents

The Municipal Land Use Law (MLUL), N.J.S.A. 40:55D-62a, requires every municipality that has adopted a zoning ordinance to maintain a master plan. At a minimum, that master plan must include:

  • A land use plan element
  • A housing plan element

Under N.J.S.A. 40:55D-28(b)(3), the housing plan element must comply with the Fair Housing Act. This required document is commonly known as the Housing Element and Fair Share Plan (HE&FSP). It serves as the municipality’s formal strategy for meeting its affordable housing obligation.

At a minimum, the HE&FSP must include the following components:

1. Housing Inventory

An inventory of the municipality’s existing housing stock, including:

  • Age and physical condition
  • Purchase and rental values
  • Occupancy characteristics
  • Housing type
  • Number of units affordable to low and moderate-income households
  • Substandard units capable of rehabilitation

In preparing this inventory, the municipality may access property tax assessment records and related information on a confidential basis, including property record cards maintained by the assessor.

2. Ten-Year Housing Projection

A projection of the municipality’s housing stock for the next ten years. This includes:

  • Anticipated residential construction
  • Building permits issued
  • Approved development applications
  • Likely residential development of available land
  • Expected production of affordable housing units

3. Demographic Analysis

An analysis of local population characteristics, including:

  • Household size
  • Income levels
  • Age distribution

This helps determine the type and scale of housing needed.

4. Employment Analysis

An examination of existing and projected employment characteristics within the municipality. Job growth and workforce patterns directly influence housing demand, particularly for moderate- and low-income households.

5. Fair Share Determination

A calculation of the municipality’s present and prospective “fair share” of the region’s need for low and moderate-income housing, along with an evaluation of its capacity to accommodate that obligation.

6. Site Suitability Analysis

A review of:

  • Lands most appropriate for affordable housing development
  • Existing structures suitable for conversion or rehabilitation
  • Properties owned or controlled by developers who have expressed a commitment to provide affordable housing