NJ Supreme Court Unanimously Provides Remedies for Delays in Affordable Housing by Towns- Fair Share Housing Center

The Mount Laurel doctrine enunciated forty years ago by the New Jersey Supreme Court is very simple:  Towns may not zone out the poor.  What followed has been relentless resistance by suburbanites.  With the election of Christopher Christie we saw  a bully standing in the doorway. He was going to turn the New Jersey Supreme Court upside down.  He lost.  A lame duck, his last Supreme Court appointment is behind him.
The high court on Monday unanimously rejected one of Christie's principle objectives: reverse Mt. Laurel - make the open housing law a dead letter. He had by-passed the Legislature to abolish the Council on Affordable Housing - a specialized administrative agency "in but not of" the Executive Branch.  The state Supreme Court said he did not have that power.

His next step was passive resistance.  The Agency was ordered to bring its regulations current.  it did not. Now the Courts will take back the authority to determine if a town is in compliance with its "Mt. Laurel" obligations.  - gwc
NJ Supreme Court Unanimously Provides Remedies for Delays in Affordable Housing by Towns- Fair Share Housing Center
In a unanimous decision issued this morning, the New Jersey Supreme Court reaffirmed that no town in New Jersey may exclude working families, low-income seniors, and people with special needs. The Court’s decision responds to the failure of the Christie Administration and the Council on Affordable Housing (COAH) to comply with a court order issued in September 2013 requiring the adoption of rules that implemented the Mount Laurel doctrine.
In re Adoption of N.J.A.C. 5:96 & 5:97 by N.J. Council on Affordable Housing (M-392-14) (067126)Argued January 6, 2015 -- Decided March 10, 2015
LaVECCHIA, J., writing for a unanimous Court.
This matter comes before the Court on a motion in aid of litigants’ rights, pursuant to Rule 1:10-3, from the Court’s judgment reported at 215 N.J. 578 (2013). By this motion, the Court considers a request for relief from the exhaustion of remedies required by the Fair Housing Act (FHA), N.J.S.A. 52:27D-301 to 329, and to allow civil actions concerning municipal compliance with constitutional affordable housing obligations to proceed in the courts.

This Court’s Mount Laurel series of cases recognized that the power to zone carries a constitutional obligation to do so in a manner that creates a realistic opportunity for producing a fair share of the regional present and prospective need for low and moderate income housing. The Legislature enacted the FHA to assist in municipal compliance with that obligation. The FHA created the Council on Affordable Housing (COAH), designed to provide an optional administrative alternative to litigating compliance through civil exclusionary zoning actions. The FHA encourages compliance by compelling COAH to establish and periodically update presumptive constitutional housing obligations for each municipality and to identify the means by which a town’s proposed affordable housing plan, housing element, and implementing ordinances can satisfy its obligation.

The FHA rewards compliance in two ways: (1) by providing a period of immunity from civil lawsuits to towns participating in the administrative process for demonstrating constitutional compliance (the exhaustion-of-administrative remedies requirement); and, (2) for a town whose fair share housing plan secures substantive certification from COAH, by providing a period during which the municipality’s implementing ordinances enjoy a presumption of validity in any ensuing exclusionary zoning litigation.

The continued viability of both rewards is subject to COAH’s required updating of municipal housing obligations and corresponding substantive and procedural rules. COAH’s rules governing the last round of municipal housing obligations expired in 1999. Since then COAH has failed twice to adopt updated regulations (Third Round Rules) for the present period of municipal housing obligations.

Most recently, in September 2013, the Court affirmed the Appellate Division’s invalidation of the second iteration of the Third Round Rules. 215 N.J. 578 (2013). In its September 2013 opinion, the Court set a five-month compliance period, and directed COAH to adopt rules by February 26, 2014. However, on February 26, 2014, COAH filed a motion for an extension of time. On March 14, 2014, this Court granted the extension and ordered COAH to take specific rule-promulgation steps, culminating in adoption of the required Third Round Rules by November 17, 2014. In the event COAH did not comply, the Order provided that the parties could return to this Court for relief, including lifting the FHA’s administrative-exhaustion requirement.
When COAH failed to promulgate Third Round Rules by November 17, 2014, Fair Share Housing Center (FSHC) filed the instant motion pursuant to Rule 1:10-3 and the Court’s March 14 Order permitting such motion practice. The Court heard oral argument on January 6, 2015, and COAH’s representative admitted that COAH has not conducted or scheduled any meetings since its last meeting in October 2014, that it does not have any plans to meet further in an effort to adopt Third Round Rules, and that staff have not been directed to perform any work in furtherance of adoption of Third Round Rules.

HELD: The FHA’s exhaustion-of-administrative-remedies requirement is dissolved until further order of the Court.
The courts may resume their role as the forum of first resort for evaluating municipal compliance with Mount Laurel obligations, as provided in this opinion and the Court’s corresponding Order. The effective date of the Court’s Order is delayed by ninety days to effectuate an orderly transition to the judicial remedies authorized by the Court***
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