Posted by: Patricia Salkin | March 29, 2015

NJ Supreme Court Provides for Enforcement of a Constitutional Right to Access to Housing

Editor’s Note: Special thanks to Edward Sullivan, Esq. for contributing this summary for Law of the Land.

In re Adoption of N. J. A. C. 5:96 & 5:97 by N. J. Council on Affordable Housing, (N. J., March 10, 2015) was the culmination of forty years of litigation over the responsibilities of New Jersey local governments to provide for their fair share of affordable housing.  As a result of two cases, Southern Burlington County NAACP v. Township of Mt. Laurel, 336 A2d 713, appeal dismissed and cert. denied 423 U.S. 808 (1975) (Mt. Laurel I) and Southern Burlington County NAACP v. Township of Mt. Laurel, 456 A2d 390 (1983) (Mt. Laurel II), the New Jersey Supreme Court established a state constitutional right to require local governments exercising its land use regulatory powers to “make realistically possible the opportunity for an appropriate variety and choice of housing for all categories of people who may desire to live there, of course, including those of low and moderate income.”  In doing so, the Court granted broad relief that included a “builder’s remedy” that allowed an applicant prevailing before a trial Court on a constitutional claim of this nature to seek direct Court approval of its application.

The prospect that the Courts may decide local zoning applications moved the New Jersey legislature in 1983 to enact the Fair Housing Act (N.J. S. A. 52:27D-301 to -329) to create the Council on Affordable Housing (COAH) to provide for a substitute administrative system by which regional housing needs would be assessed and the share of that regional need to constituent local governments would be apportioned and implemented.  This legislation also provided those local governments that achieved “substantive certification” of compliance with those regional obligations with immunity from the builder’s remedy, and would have a presumption of constitutional validity if those local regulations were challenged.  Under the alternative system, COAH was obligated to adopt administrative rules to update its housing projections and allocations, as well as procedural and substantive standards dealing with local government housing obligations.  In a subsequent case, Hills Dev. Co. v. Twp. Of Bernards, 510 A.2d 621 (1986) the Supreme Court deferred to this legislative solution and effectively suspended the builder’s remedy.

The administrative process worked for some time, but in 1999 the existing set of COAH administrative rules expired.  Efforts to update those rules were struck down in 2007 and 2010.  A further attempt to revise the rules to adopt a “growth share” model failed in 2013. Under the growth share theory, the municipal obligation to provide realistic opportunities for affordable homes was calculated, but could be adjusted to reflect actual residential and nonresidential growth, allowing municipalities to avoid the obligation by controlling their rates of growth.

After the series of failed efforts to adopt new administrative rules, the Supreme Court on March 14, 2014 ordered new rules to be adopted by November 17 2014, with the alternative that the case would be returned to the Supreme Court to fashion relief.  COAH deadlocked 3-3 on adoption of new rules on October 20, 2014 and one of the parties to the proceedings to invalidate the 2010 rules initiated proceedings in the New Jersey Supreme Court for relief.  At oral argument, COAH informed the Court that it had not met since the deadlock vote and had no plans to meet, but contended that the deadlock was not willfully contumacious conduct.  Various local jurisdictions contended that COAH should have more time or, alternatively, that those municipalities that were before COAH for substantive certification should not have their immunity from builder’s remedies lifted.

The Court found efforts to secure more time for COAH to adopt new rules undermined by the lack of any prospect for such adoption in the near future.  It also observed that there was no requirement that the failure to respond to the Court’s orders to adopt rules be willful for the Court to act.  In view of the failure to adopt new administrative rules, the Court determined that deference to the legislative solution was no longer justified and that direct access to the Courts to secure compliance with the constitutional right created in the Mt. Laurel cases would be restored.  The Court then provided for a 90-day transition period to deal with Mt. Laurel litigation, but stressed that COAH and the legislature were free to take actions to achieve the same ends.  The Court then turned to the specific classes of situations in which Mt. Laurel obligations were at issue.

As to the 200 municipalities that had not requested substantive certification of the housing elements of their plans and their implementing regulations or which had not agreed to participate in COAH actions to achieve substantive certification, they would continue to be exposed to Mt. Laurel suits (and possibly the application of the builder’s remedy), which left those entities no worse off than before.

For those 60 municipalities that had achieved substantive certification under the post-1999 rules later determined to be invalid because of the “growth share” methodology, they would be examined against the Mt. Laurel standards, but adjustments to housing elements and implementing regulations may be required by trial Courts, possibly through supplemental actions.  Moreover, the Court expressed a general inclination to grant the municipality immunity from the builder’s remedy during such litigation, unless it became “unreasonably protracted.”  These municipalities will have a 30-day period, after the 90-day delay in the effective date of the Court’s order that is applicable to other parties, to file declaratory judgment actions asserting compliance with Mt. Laurel.  After that period, those municipalities are subject to Mt. Laurel litigation brought by others.

As to the remaining 300 municipalities that had agreed to participate with COAH to achieve substantive certification, the trial Court would be required to inquire as to the extent to which, beyond merely agreeing to participation, the municipality had formulated and implemented plans and regulations to achieve compliance with Mt. Laurel.  Similarly, those municipalities had a 30-day period, after the 90 days provided for other municipalities, to elect to file their own litigation asserting compliance or awaiting a challenge after that time by other parties asserting noncompliance.  In either case, the trial Court must decide whether to provide immunity from a builder’s remedy while the case is pending, and if necessary, whether to continue that immunity in the light of existing circumstances.

In any event the Court was clear that it would assure compliance with its Mt. Laurel decisions.

In re Adoption of N. J. A. C. 5:96 & 5:97 by N. J. Council on Affordable Housing, (N. J., March 10, 2015)

The opinion can be accessed at:

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