Historic Overview of the Courts and COAH

As stated above, the 1975 New Jersey Supreme Court rendered its decision in South Burlington County NAACP  v. Township of Mount. Laurel, 67 N.J. 151 (1975)(“Mount Laurel I”), in which it held that every developing municipality in the state had an affirmative constitutional obligation to provide for its fair share of affordable housing. After that, there was little movement by municipalities to produce affordable housing.  Consequently, the Supreme Court issued a second decision known as South Burlington County NAACP  v. Mount Laurel Township., 92 N.J. 158 (1983)(“Mount Laurel II”), in which it created the builder’s remedy lawsuit in an effort to get municipalities to comply with their constitutional affordable housing obligations. The Supreme Court also refined the constitutional obligation to focus primarily on those municipalities with portions of their boundaries within the growth area as shown on the New Jersey State Development and Redevelopment Plan, and called for the state legislature to enact legislation that would save municipalities from the burden of having the courts determine their affordable housing needs. As a result, the state legislature adopted the Fair Housing Act in 1985. This action resulted in the creation of the New Jersey Council on Affordable Housing (COAH), the State agency responsible for monitoring the manner in which the State’s municipalities addressed their low and moderate-income housing needs. 

COAH adopted regulations establishing housing need numbers for the First Round obligation covering the years 1987 to 1993 and established Second Round housing-need numbers that cumulatively covered the years 1987 through 1999. Under both the First and Second housing rounds, COAH utilized what is commonly referred to as the “fair share” methodology. 

COAH utilized a different methodology, called “growth share,” to prepare Third Round housing need numbers. COAH first adopted Third Round substantive and procedural rules in 2004. These regulations were challenged, and in January of 2007, the Appellate Division invalidated various aspects of the regulations and remanded considerable portions of the rules to COAH with the directive to adopt revised rules.  

In May 2008, COAH proposed revised Third Round regulations, which became effective on June 2, 2008.  On the same day, COAH proposed amendments to the rules it just adopted and said amendments went into effect in October 2008. 

The rules and regulations adopted in 2008 were also challenged.  And, in October 2010, the Appellate Division concluded that COAH’s revised 2008 regulations suffered from many of the same deficiencies as the first iteration of COAH’s Third Round rules. The Appellate Division, therefore, invalidated substantial portions of the 2008 Third Round regulations, including all regulations that dealt with the growth-share methodology. (Refer to: Adoption of N.J.A.C. 5:96 & 5:97, 416 N.J. Super. 462 (App. Div. 2010). The Supreme Court affirmed this decision in September 2013, and on March 14, 2014, issued an order which required COAH to adopt new Round 3 regulations by October 22, 2014.  

Unfortunately, COAH failed to adopt its newly revised Third Round regulations, deadlocking with a 3-3 vote in October of 2014. A third-party organization, known as the Fair Share Housing Center (“FSHC”), which was a party in both the 2010 and 2013 cases, responded by filing a motion in aid of litigants’ rights with the New Jersey Supreme Court. The Supreme Court heard the motion in January 2015.  On March 10, 2015, it issued its decision “In the Matter of the Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015)(“Mount Laurel IV”).”  In this decision, the Supreme Court held that COAH was effectively dysfunctional, and consequently, returned jurisdiction of affordable housing issues back to the trial courts, where it had been prior to the creation of COAH in 1986.  The Mount Laurel IV decision also created a process for municipalities, like Summit, that have endeavored to address their fair share obligations in the past, but could not obtain Third Round substantive certification of their Housing Element and Fair Share Plan (HE&FSP) because of COAH’s inaction. Instead, Summit had to work toward getting its plan approved via a Third Round Judgment of Compliance and Repose. Municipalities were entitled to file declaratory judgment actions seeking to declare their affordable housing plans constitutionally compliant, and were also entitled to apply for temporary immunity from all Mount Laurel lawsuits, including builder’s remedy lawsuits, while they prepared a new or revised affordable housing plan.   

Since the 1980s, Summit has been an active participant in the creation of affordable housing in the community and has consistently met the affordable housing requirements of the agency responsible for overseeing the state’s affordable housing rules, the Council on Affordable Housing (COAH).

In 2015, the New Jersey Supreme Court ruled that the administrative process for reviewing municipal compliance with the state’s affordable housing requirements had become non-functioning and transferred jurisdiction over such matters from COAH to the New Jersey Superior Court. The ruling also established a judicial forum as a substitute for COAH’s process for certifying a municipality’s affordable housing obligation.

In accordance with the Supreme Court ruling, New Jersey municipalities were provided the opportunity to seek approval of their plans for development of affordable housing through a court filing termed a declaratory judgment action. Summit filed its declaratory judgment action, along with the accompanying housing plan approved by the planning board, as required by the court.

The responsibility for reviewing the declaratory judgment actions filed by the municipalities was assigned to one of the 15 judges appointed by the Supreme Court to review the matter.

At the center of the litigation is the methodology under which the court will use to determine the municipal affordable housing obligations for the period 1999-2025. The municipalities have proposed a methodology, which is believed fair and appropriate, and yields an obligation that would require less development. The Fair Share Housing Advocates, the Builder’s Association and interested developers are proffering a methodology that would require much more intensive and extensive development.