Scarinci Hollenbeck, LLC

Affordable Housing Law

Affordable Housing Law

Scarinci Hollenbeck’s affordable housing law attorneys have spent more than two decades working with New Jersey municipalities to meet their constitutional obligations, which is a tremendous advantage to public agencies, developers, investors, lenders, and other entities involved in affordable housing projects.

Relying on their vast knowledge and real-world insight, our attorneys work with public and private entities throughout the state to bring affordable housing projects to life and advance New Jersey’s community development goals.

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Respected Authority on Affordable Housing Law

Scarinci Hollenbeck’s affordable housing team has represented more than 50 New Jersey municipalities in a wide range of affordable housing matters. During this time, we have enjoyed a front-row seat to the evolution of the state’s affordable housing system, from the implementation of the New Jersey Supreme Court’s Mount Laurel decisions to the abolishment of the Council on Affordable Housing (COAH) to ongoing affordable housing reforms.

What is the Mount Laurel Doctrine?

The Mount Laurel doctrine encompasses a series of affordable housing decisions by the New Jersey Supreme Court. In South Burlington County NAACP v. Mount Laurel, 67 N.J. 151 (1975) and South Burlington County NAACP v. Mount Laurel, 92 N.J. 158 (1983), the New Jersey Supreme Court established that each municipality has a constitutional obligation to provide through its land use regulations a realistic opportunity for the construction of their fair share of affordable housing.

Scarinci Hollenbeck: Your Affordable Housing Attorneys

The depth and breadth of our experience is not only an asset to New Jersey municipalities but allows us to provide invaluable insight to private developers as well. We understand the intricacies involved in the real-world application of the state’s affordable housing regulations, which allows us to successfully move projects forward in the most challenging circumstances.

Scarinci Hollenbeck’s affordable housing attorneys are also supported by talented professionals across the firm, including those with invaluable experience in finance, tax, commercial real estate, land use, construction, environmental, regulatory compliance, and litigation. No matter what obstacles may arise, we are confident that we have the team members needed to overcome them.

Comprehensive Legal Guidance for NJ Affordable Housing Projects

Successfully navigating complex affordable housing issues requires experienced and dedicated counsel. Scarinci Hollenbeck represents clients involved in every phase of an affordable housing project, including local and national developers, property owners, municipalities, redevelopment authorities, lenders, underwriters, and others. We are also equipped to handle the myriad of issues that can arise from project conception to completion.

Our New Jersey affordable housing professionals provide comprehensive guidance in a wide range of areas, including:

• Affordable housing litigation
• Bid protests
• Construction contracts, negotiation, drafting, and review
• Developer due diligence
• Environmental law issues
• Financing
• Joint ventures
• Master development agreements
• Mount Laurel affordable housing compliance
• Procurement law compliance
• Project financing and underwriting
• Property acquisition and disposition
• Regulatory compliance with all applicable federal, state, and local laws
• Solicitation documents, including invitations to bid or requests for proposals
• Site control documentation
• Tax credits and incentives, including Low-Income Housing Tax Credits (LIHTCs)
• Zoning, permitting, and related land use issues

Our affordable housing attorneys also provide legal guidance on Department of Housing and Urban Development (HUD) funds and programs, including housing choice and project-based (Section 8) vouchers, public housing, procurement, mixed-finance development, Rental Assistance Demonstration (RAD), Qualified Opportunity Zone (QOZ) program funding, Choice Neighborhoods, and more. For more information about our federal affordable housing experience, we encourage you to contact us.

Why Choose Us as Your Affordable Housing Lawyer?

Affordable housing issues are complex and require the guidance of knowledgeable attorneys who can successfully navigate New Jersey’s ever-evolving system. The experience of Scarinci Hollenbeck’s affordable housing team is unparalleled.

Armed with our vast experience and industry insight, we are equally adept at helping local governments meet their constitutional obligations and developing strategies for builders to capitalize on affordable housing opportunities. Our affordable housing attorneys can also draw on the experience of peers from across the firm, which allows us to provide efficient and comprehensive legal guidance on the countless legal issues that can arise during an affordable housing project.

FAQ about Affordable Housing Law

New Jersey’s affordable housing landscape remains in flux. Since COAH was stripped of its authority in 2015, New Jersey courts have been tasked with establishing affordable housing obligations for municipalities and certifying municipal plans to meet those obligations through declaratory judgment actions.

The New Jersey Legislature is on the cusp of enacting legislation (A4/S50) that will dramatically alter how affordable housing is built in New Jersey by permanently abolishing COAH, establishing new affordable housing quotas, and altering municipalities’ immunity to builder’s remedy suits, among other key changes. Under the proposed changes, the Department of Community Affairs (DCA) would assume many of COAH’s former duties, including calculating regional needs and municipal present and prospective obligations, while a new Affordable Housing Dispute Resolution Program (Program) would be established within the Administrative Office of the Court (AOC) to handle disputes.

Scarinci Hollenbeck’s affordable housing team is at the forefront of the ongoing reforms. We stand ready to help municipalities navigate the challenges of complying with whatever comes next and also look forward to helping developers identify new opportunities. We encourage everyone involved in the New Jersey affordable housing industry to regularly visit our website for legal updates and contact us with any questions about how you may be impacted by the proposed changes.

A builder can file a lawsuit challenging a New Jersey municipality’s compliance with its obligations to provide low- and moderate-income housing, which is known as a “builder’s remedy suit.” Under Toll Bros. v. Twp. Of West Windsor, 334 NJ Super. 109 (App. Div. 2000), a developer is entitled to a builder’s remedy if (1) it succeeds in Mount Laurel litigation; (2) it proposes a project with a substantial amount of affordable housing; and (3) the site is suitable, i.e. the municipality fails to meet its burden of proving that the site is environmentally constrained or construction of the project would represent bad planning.

When a builder’s remedy is granted against a municipality, the court (rather than the municipality) determines the zoning of the subject property. Accordingly, a developer who succeeds in a builder’s remedy suit may be entitled to a court-ordered zoning designation, which may cover zoning issues such as density, setbacks, building heights, and lot coverage. In a successful builder’s remedy suit, developers may also be entitled to recover attorney’s fees and costs, the fees of a court-appointed special master who assists in developing the zoning scheme for the property, and the costs of any infrastructure improvements, such as sewer and water system upgrades and road improvements.

The New Jersey Fair Housing Act (FHA) established the Council on Affordable Housing (COAH) to oversee compliance with the Mount Laurel Doctrine. However, after failing to enact its third round of implementing regulations, the Supreme Court of New Jersey transferred the administration of affordable housing rules to the courts, effectively stripping COAH of any power.  If enacted, A4/S50 will formally end COAH’s troubled tenure.

Under the “Mount Laurel doctrine,” every town in New Jersey has a constitutional obligation to create a “realistic opportunity” for the construction of its “fair share” of affordable housing. In the vast majority of cases, municipalities find it extremely difficult to achieve this legal mandate.

In turn, developers and landowners enjoy substantial leverage when proposing a project that includes a mix of market-rate and affordable units (“inclusionary development”). This leverage permits developers and landowners to demand much higher density than the current zoning as an “internal subsidy” for providing affordable units. This extra density also typically increases the overall ROI on the project.

In addition to the above, such projects (1) are often given priority with regard to water and sewer capacity; (2) are protected from burdensome, profit-draining conditions commonly demanded by land use boards; and (3) often qualify for additional financial subsidies from sources including tax abatements, PILOT agreements, and residential and nonresidential affordable housing development fees collected and held in trust by towns to assure the economic feasibility of inclusionary projects.

Finally, redevelopers enjoy the various benefits listed above, and often wield additional leverage due to the developer-friendly statutory features in the Local Redevelopment and Housing Law (Local Redevelopment Law), N.J.S.A. 40A:12A–1 to –63 and the availability of condemnation pursuant to the Local Redevelopment Law and the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 to -329.

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* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

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