Windowless Bedrooms in Low and Moderate Income Housing Units | NJ Appellate Law Blog – NJ Appellate Lawyer Bruce D. Greenberg blogs about Appeals and Appellate Law Practice

In light of the recent policy change that calls for the posting online of briefs filed in Appellate Division appeals that will be orally argued, this blog will sometimes report on cases of interest that are about to be argued. The first such case is In the Matter of West Windsor
Township, which is scheduled for oral argument before Part E on September 17. The briefs in the case are available here.

West Windsor Township is the appellant in this appeal. The case centers on an inclusionary housing development of 868 residential units in West Windsor to be constructed by respondent AvalonBay Communities, Inc. The development is proposed to address the Township’s affordable housing obligation. The West Windsor Planning Board approved the development.

The Township filed a declaratory judgment action in the Law Division, Mercer County, contesting the Board’s approval. The Fair Share Housing Center (“FSHC”), whom the Supreme Court designated as an interested party in all declaratory judgment actions resulting from the Court’s ruling in In re N.J.A.C. 5:96 and 5:97, 221 N.J. 1 (2015) (“Mount Laurel IV”), as a respondent in the appeal, also objects to the development.

The basis for the objections by both the Township and FSHC is that the vast majority of the affordable units in the development would have a bedroom without a window, while only a small percentage of market rates units would be so equipped. The objectors say that that violates principles of Mount Laurel that are designed to benefit, and not to disadvantage, low and moderate income residents. They also contend that this disparity violates Council on Affordable Housing regulations and the federal Section 8 housing program.

The developer counters that nothing in any building code or regulation requires that every bedroom have a window, and that all units in which there is a windowless bedroom have artificial light in that bedroom and natural light in an adjacent living room. The developer also asserts that nothing in Mount Laurel does, or could, require affordable and market rate units to be designed identically, and that, in any event, Mount Laurel governs the conduct of municipalities vis-a-vis affordable housing, not the conduct of developers.

The Law Division ruled against West Windsor below. This should be an interesting oral argument before the designated three-judge panel.

The Last Seven Days

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