Appellate Division Says COAH Rules and Regulations Do Not Support a “Gap” Period Affordable Housing Obligation
Jul 19, 2016 | Written by: Share|
The battle over New Jersey municipal affordable housing obligations continues, with municipalities on one side and Fair Share Housing Center (“FSHC”), the New Jersey Builder’s Association (“NJBA”) and a plethora of developers on the other. All parties have presented numerous expert reports to the courts, setting forth their proposed calculations of statewide, regional, and municipal need. Since the beginning, FSHC, NJBA, and the builders have insisted that municipal affordable housing obligations include low and moderate income households created between 1999 and 2015, the years during which the Council on Affordable Housing (“COAH”) was in a stagnated state and not promulgating valid regulations.
At least two Superior Court judges in Middlesex and Ocean Counties agreed with FSHC and the builders that an identifiable and enforceable “need” arose during the so-called 16-year gap period, thereby potentially increasing the statewide need for affordable housing by 145,000 units. In February 2016, The Honorable Mark Troncone ruled in Ocean County that the “gap” period represented a “separate and discrete component” of a municipality’s affordable housing need.
However, on July 11, 2016, the Appellate Division in New Jersey overturned the Ocean County ruling regarding the “gap” period and held that the plain language of the Fair Housing Act (“FHA”) and the core principles of the Mount Laurel doctrine do not justify the imposition of a gap period obligation. The Court further determined that a decision to impose a gap period obligation would require legislative action because, pursuant to the Supreme Court’s directive in Mount Laurel IV, the Court was not to act as a replacement agency for COAH and was to only operate within COAH’s existing framework and regulations.
The Court, therefore, reversed the decision and remanded the matter to Judge Troncone for further proceedings, presumably a trial on the overall statewide numbers and compliance hearings for individual municipalities. This decision will vastly impact the affordable housing proceedings in all of the vicinages. It is apparent that FSHC and the developers’ experts will have to recalculate their proffered affordable housing numbers to account for this decision. Additionally, it is safe to assume that FSHC and (at least some) developers will appeal this decision to the Supreme Court. Therefore, the only sure thing is that the question of municipal affordable housing obligations remains in flux.