In a 55-page unanimous decision released March 10, 2015, the New Jersey Supreme Court broke the long-standing deadlock concerning municipal compliance with the Mount Laurel constitutional obligations, effectively lifting a de facto building moratorium that has occurred over the past 5 years due to governmental and judicial paralysis. In its Opinion granting a motion to enforce litigant's rights filed by Fair Share Housing Center from the judgment and ensuing enforcement Order of March 14, 2014 issued in In Re Adoption of N.J.A.C. 5:96 & 5:97, 215 N.J. 578 (2013), the Supreme Court terminated any requirement to exhaust administrative remedies before the Council on Affordable Housing (COAH). Moving forward, oversight and implementation of affordable housing compliance will be determined by the courts.
The Court's implementing Order is attached at the end of its Opinion. (See link to the Opinion, infra). This Order will take effect June 8, 2015. There is a 30-day window allotted thereafter within which towns who are classified as either a "Class 1" or "Class 2" town may file declaratory judgment actions seeking temporary immunity from "builders remedy". This 30-day window closes July 8, 2015. Thereafter, municipalities that are not within the court's jurisdiction will be subject to "builders remedy" actions. However, such declaratory action filings must be on notice to all "interested parties" (e.g., any litigant or property owner or builder-developer) and thus opens the door for challenges by way of intervention to any new, updated or re-calibrated Third Round affordable housing plan – denominated a "constitutional compliant plan" -- that towns will likely have their planners prepare and file.
The delay in the implementation of this Order allows for municipalities to recalculate need, revise housing elements in their zoning ordinances and their fair share plans, and then make a determination as to whether they will subject themselves voluntarily to court jurisdiction. Property owners, builders and developers who believe their sites to be appropriate and suitable for affordable housing should immediately notify the applicable municipality of their interest for inclusion in a town's revised affordable housing plan and, at the very least, that they be notified of any submission made by the municipality to court jurisdiction as an "interested party".
While the Supreme Court imposed a 90-day "transition" period before its Order becomes effective, it only affects "Class 1" or "Class 2" towns. As noted, within the first 30 days following the effective date of the implementing Order, the only actions that will be entertained by the trial courts will be declaratory judgment actions filed by one of two classes of towns "left stranded by COAH's failure to adopt valid Third Round Rules", i.e.: (1) 3rd round certified towns ("Class 1"), or (2) those that had "participating" status before COAH ("Class 2").
Importantly, any town that is neither a "Class 1" nor "Class 2" town is subject to possible "builders remedy" litigation - NOW. Property owners, builders and developers should take heed immediately and are advised, therefore, to consult with experienced land use counsel at the earliest possible time in order to evaluate the array of rights and remedies that may be available to them. Such evaluation would include, without limitation, assessment of the feasibility for potential re-zoning and development of their property holdings to accommodate municipal affordable housing needs, either through inclusionary development projects or other COAH-approved compliance mechanisms.
A copy of the NJ Supreme Court's decision issued on March 10, 2015 can be accessed here:
http://www.judiciary.state.nj.us/opinions/supreme/M39214COAH.pdf
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