NJ Supreme Court Holds that Municipalities Must Address Affordable Housing Obligations Attributable to the Gap Period (1999 to 2015)

Gap Decision Released: NJ Supreme Court Holds that Municipalities Must Address Affordable Housing Obligations Attributable to the Gap Period (1999 to 2015)

In an eagerly anticipated decision released this morning, the New Jersey Supreme Court reaffirmed one of the core tenants of the Mount Laurel obligation that the municipal fair share obligation continues year-to-year and does not have any gaps that will not be addressed. At stake in this appeal was whether municipalities could ignore a sixteen year time period (1999 to 2015) of affordable housing obligations as a result of COAH’s refusal and inability to adopt compliant regulations since 1999. Quite simply, there were tens of thousands of affordable housing units at stake in this decision.

In this decision, the New Jersey Supreme Court determined:

* The obligation for municipalities to address their fair share obligations is cumulative and there cannot be any gaps for time periods that are not addressed. On that point, the Court was emphatic: “As to the fundamental disagreement – whether the gap period must be addressed – we waste no time in settling that issue. There is no fair reading of this Court’s prior decisions that supports disregarding the constitutional obligation to address pent-up affordable housing need for low- and moderate income households that formed during the years in which COAH was unable to promulgate valid Third Round rules…. [T]here could be no hiatus in the constitutional obligation.”

* The manner in which the affordable housing need from 1999 to 2015 is calculated must be reexamined as a component of “present” versus “prospective” need. While the foregoing distinction will require a reexamination of how the housing obligations are to be calculated, that calculation must include affordable households that were formed from 1999 to 2015 and which households were denied the constitutionally required affordable housing opportunities across the State.

With this appeal resolved, the trial courts will now proceed with establishing the fair share obligations of municipalities across the State, which should facilitate a resolution of the pending declaratory judgment lawsuits. Bisgaier Hoff, LLC has participated in the only trial court decision that has been issued thus far for such a methodology trial involving South Brunswick, Middlesex County, and our firm is participating in the methodology trial that is currently ongoing in Mercer County.

A copy of the New Jersey Supreme Court’s decision, which is styled In re Declaratory Judgment Actions Filed By Various Municipalities, Ocean County, Docket No. A-1-16, is available at http://www.judiciary.state.nj.us/opinions/supreme/A116MvO.pdf

Bisgaier Hoff, LLC was involved in the Ocean County litigation that gave rise to this decision. Please contact us if you would like more information regarding this decision.