In re the Adoption of Housing Element

131 A.3d 961, 444 N.J. Super. 163, 2015 N.J. Super. LEXIS 219
CourtNew Jersey Superior Court Appellate Division
DecidedOctober 5, 2015
StatusPublished
Cited by1 cases

This text of 131 A.3d 961 (In re the Adoption of Housing Element) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Adoption of Housing Element, 131 A.3d 961, 444 N.J. Super. 163, 2015 N.J. Super. LEXIS 219 (N.J. Ct. App. 2015).

Opinion

WOLFSON, J.S.C.

I. Statement Of The Case

Following the Supreme Court’s decision in In re Adoption of N.J.AC. 5:96 and 5:97 by N.J. Council on Affordable Housing, 221 N.J. 1, 110 A.3d 31 (2015), (hereinafter “Mount Laurel IV”), several municipalities moved before this court for a declaration that their respective fair share numbers should be capped at 1000 units in accordance with the Fair Housing Act (“FHA”) and with existing regulations of the Council on Affordable Housing (“COAH”). See N.J.S.A. 52:27D-307(e); N.J.A.C. 5-.97-5.8.1

[166]*166Consequently, the novel issues to be adjudicated here concern: (1) the availability, applicability, and manner of implementation of the “1000-unit cap” as to each municipality’s respective Third Round obligations; (2) whether and to what extent those obligations must address, in the aggregate, both the unmet need for lower income housing that had been generated between 1999 and today (the “gap period”), as well as their fair share of the region’s prospective need for such housing as calculated from today through 2025; and (3) how credits for affordable units constructed during those prior cycles shall be applied.

II. Relevant History Of The 1000-Unit Cap

In response to Southern Burlington County NAACP v. Township of Mount Laurel, 67 N.J. 151, 336 A.2d 713 (1975) (hereinafter “Mount Laurel I ”) and Southern Burlington County NAACP v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (1983) (hereinafter “Mount Laurel II”), the Legislature enacted the FHA, which created COAH. That administrative agency was empowered to “define housing regions within the state and the regional need for low and moderate income housing, along with the power to promulgate criteria and guidelines to enable municipalities within each region to determine their fair share of that regional need.” Hills Dev. Co. v. Bernards, 103 N.J. 1, 20, 510 A.2d 621 (1986) (hereinafter “Mount Laurel III”); see N.J.S.A. 52:27D-305 (establishing COAH). In addition, the Legislature bestowed upon COAH, instead of the courts, the power “to decide whether proposed ordinances and related measures of a particular municipality will, if enacted, satisfy its Mount Laurel obligation,” thereby embracing and codifying a municipality’s constitutional obligation to provide a realistic opportunity for the construction of [167]*167its fair share housing for lower and moderate income households. Mount Laurel III, supra, 103 N.J. at 20, 510 A.2d 621; see also Sod Farm Assocs. v. Twp. of Springfield, 366 N.J.Super. 116, 123, 840 A.2d 885 (App.Div.2004) (COAH established “as an alternative method of review to be used by municipalities for challenges, review of zoning regulations and for protection from future challenges”).

In a concerted effort calculated to protect municipalities from onerous fair share burdens that could cause a “radical transformation” of the municipality, (see Mt. Laurel II, supra, 92 N.J. at 219, 456 A.2d 390 (where the construction of the requisite housing would “radically transform the municipality overnight,” trial courts were authorized to relieve a municipality of its duty to satisfy its obligation immediately)), the Legislature directed COAH to adopt guidelines that would “adjust” the present and prospective fair share if “[t]he established pattern of development in the community would be drastically altered.” N.J.S.A. 52:27D-307(c)(2)(b). Pursuant to N.J.S.A 52:27D-307(e), COAH was authorized in its discretion to

place a limit, based on a percentage of existing housing stock in a municipality and any other criteria including employment opportunities which the council deems appropriate, upon the aggregate number of units which may be allocated to a municipality as its fair share of the region’s present and prospective need for low and moderate income housing.

Consistent with this directive, COAH enacted N.J AC. 5:92-7.1, which provided:

(a) After receiving the crediting provided in Subchapter 6, Credits, where a municipality’s present and prospective fair share exceeds 20 percent of its total occupied housing stock as estimated as of July 1,1987, the municipality may adjust its fan- share to 20 percent of its estimated 1987 occupied housing stock.
(b) After receiving the crediting provided in N.J.AC. 5:92-6, Credits, where a municipality’s present and prospective fair share exceeds 1,000 low and moderate income housing units, the municipality may adjust its fair share to 1,000.

Three years after these regulations were promulgated, the Appellate Division invalidated them. See Calton Homes, Inc. v. Council on Affordable Hous., 244 N.J.Super. 438, 450, 582 A.2d 1024 (App.Div.1990), (COAH’s determination that a fair share number exceeding 1000 per se constitutes a drastic alteration of

[168]*168the established pattern of development in all New Jersey municipalities deemed arbitrary and unreasonable), certif. denied, 127 N.J. 326, 604 A.2d 601 (1991). Because a per se cap did not properly account for the fact that “certain municipalities may have a fair share obligation more than double the 1,000-unit cap,” the Appellate Division predicted that a substantial fair share disparity might well arise among municipalities within the same housing region, id. at 450-151, 582 A.2d 1024, prompting it to remark that the Legislature “could not have intended to convey unbridled discretion to select an absolute cap on the number of units to be built without first considering the burden imposed on the petitioning municipality and its relationship to other municipalities sharing the burden of providing regional and statewide housing needs.” Id. at 448, 582 A.2d 1024.

The Legislature quickly responded to the Calton Homes decision by adopting an amendment to the FHA designed to cure the deficiencies adjudicated to exist in the prior version. See Sponsor’s Statement to S. 858 (1993) (“[t]he courts declared the regulation illegal because it imposed a cap that was not based upon the facts and circumstances of the municipality”).

As amended, N.J.S.A.

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Related

In re the Township of South Brunswick
153 A.3d 981 (New Jersey Superior Court App Division, 2016)

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Bluebook (online)
131 A.3d 961, 444 N.J. Super. 163, 2015 N.J. Super. LEXIS 219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-adoption-of-housing-element-njsuperctappdiv-2015.