NJ Supreme Court Acts Decisively on Affordable Housing

After years of inaction and failure to respond to court requests from the Christie administration and his Council on Affordable Housing (COAH), the New Jersey Supreme Court decided yesterday to take matters into its own hands and provide a remedy.  

When COAH had failed to promulgate Third Round Rules requested by the court by November 17, 2014, Fair Share Housing Center filed an instant motion. “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.”

Yesterday the court ruled as a remedy that “towns must subject themselves to judicial review for constitutional compliance, as was the case before the Fair Housing Act was enacted.”

This ruling should help people of low and moderate income seeking much needed affordable housing throughout New Jersey.

For individuals interested in learning more about yesterday’s unanimous decision, below the fold are a few key paragraphs from the court’s syllabus on this decision.  

“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 administrative forum [Council on Affordable Housing (COAH)] is not capable of functioning as intended by the Fair Housing Act (FHA) due to the lack of lawful Third Round Rules. Because there are no Third Round Rules, the FHA’s administrative remedy for demonstrating constitutional compliance has been rendered futile. Accordingly, towns must subject themselves to judicial review for constitutional compliance, as was the case before the FHA was enacted.”

“It [the relief authorized] will present an avenue for low- and moderate-income New Jersey citizens, and entities acting on their behalf, to challenge any municipality that is believed not to have developed a housing element and ordinances that bring the town into compliance with its fair share of regional present and prospective need for affordable housing. It also will provide a municipality that had sought to use the FHA’s mechanisms the opportunity to demonstrate constitutional compliance to a court’s satisfaction before being declared noncompliant and then being subjected to the remedies available through exclusionary zoning litigation, including a builder’s remedy.”

“The Court notes that judges should endeavor to secure, whenever possible, prompt voluntary compliance from municipalities. If a town is determined to be constitutionally noncompliant, then the court may authorize exclusionary zoning actions seeking a builder’s remedy to proceed against the towns.”

“Nothing in the Court’s opinion should be understood to prevent COAH from fulfilling its statutory mission to adopt constitutional rules to govern municipalities’ Third Round obligations in compliance with the FHA. Nor should the action taken by the Court be regarded as impeding the Legislature from considering alternative statutory remedies to the present FHA. ”

To read the 3-page  syllabus and 50-page full court decision go HERE.

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