Affordable Housing and the Mount Laurel Doctrine in New Jersey: Solving the Geometry of Chaos

December 2014Articles In the Zone

In the November issue of In the Zone , we published an article discussing the failure of the Council on Affordable Housing (COAH) to adopt the third iteration of the Third Round Rules. That article referenced the Supreme Court’s Order of March 14, 2014 (March 14th Order), which expressly directed that COAH adopt the proposed rules before October 22, 2014, for publication in the New Jersey Register for the November 17 edition – or else. Because the Third Round Rules were neither adopted nor published as the court explicitly ordered, presently there are no administrative rules governing COAH, nor quantifying municipal affordable housing obligations.

In light of where we now find ourselves in this unending, unproductive and counterclockwise loop of executive-legislative-judicial paralysis on the issue, one cannot help but pause and reflect on observations made some 18 years ago by Harvard University Louis D. Brandeis Professor of Law, Charles M. Haar, in his 1996 book, Suburbs Under Siege: Race, Space and Audacious Judges. In his analysis of the social and political forces in play that ultimately yielded the New Jersey Supreme Court’s seminal Mount Laurel I decision in 1975 and its follow-on 1983 decision fashioning the “builders remedy” in Mount Laurel II, Professor Haar made what can very well be characterized as prescient observations and, perhaps, timely guidance in one of his concluding chapters. In “Chapter XI: The Last Recourse: Why Judges Intervene,” he wrote, in pertinent part:

The Mount Laurel litigations bring to the fore the residual role of the courts in the checks-and-balances system of a constitutional democracy. Local governments, ordinarily endowed with total discretion in the exercise of zoning powers, are found to be seriously and chronically in constitutional default. In such a state of affairs, whatever a court’s adherence to the separation of powers as usually enunciated or whatever the loyalty to the conventional divisions of powers among the levels of government as typically argued, the strict rules of judicial insulation become inapposite.
Reordering of Government Behavior
To modify a phrase from the philosopher David Hume, it is both appropriate and necessary for the court to fashion judicial remedies to remove local exclusionary regulatory ordinances. By appropriate, I mean that the court is neither overstepping its authority nor improperly impinging on the prerogatives of the other two branches of government. By necessary, I mean that, without judicial intervention, the problem will remain with us for the foreseeable future . . .
Any charge that the Mount Laurel courts are expansionist is fundamentally contrived; the court is performing the function it has been assigned under the constitution or a statute. Courts by law must hear the claims of illegality put forth by plaintiffs and the responses by defendants and then make a determination. Once the claims of a builder or a public interest group regarding a Mount Laurel exclusionary zoning ordinance are proven, failure to provide appropriate relief from defendants’ on-going wrongful conduct and practices would render nugatory the original determination of liability and eventually serve to undermine the role of the judiciary in guaranteeing a lawful society. . .
But the mere fact that it is appropriate for the court to fashion judicial remedies may not be enough to support intervention. One must also ask whether intervention is necessary. . .

It is often said that the “past is prologue.” Professor Haar’s defense of the activist role the New Jersey Supreme Court played in fashioning the Mount Laurel Doctrine and enforcing it through the “builders remedy” rings even louder today. Fifteen years have passed since New Jersey last had valid rules governing the calculation of affordable housing obligation and the means by which to ensure that affordable housing is delivered to those most in need. The time has finally come once again for the Supreme Court to act.

Come January 6, 2015, the repercussions of COAH’s failure to discharge its administrative duties will be squarely before the New Jersey Supreme Court. The Fair Share Housing Center (FSHC) has filed a motion to enforce litigants’ rights seeking relief in the form of a framework whereby litigants may challenge municipal zoning ordinances on the basis that they fail to provide for a realistic opportunity for the municipality’s fair share of the regional affordable housing need. The framework would include a uniform determination of statewide need, the appointment of specific judges to handle affordable housing litigation, and the adjudication of this issue in the Law Division.

In its March 14th Order, the Supreme Court specifically permitted motions in aid of litigants’ rights to lift the protections provided to municipalities in accordance with the Fair Housing Act, N.J.S.A. 52:27D-313, and thereby allow the commencement of “builders remedy” challenges against specific municipalities.The FSHC motion is the direct result of the Supreme Court’s procedural retention of jurisdiction in the March 14th Order.

Strangely, COAH responded to the FSHC motion by simply stating that there has been no violation by COAH of the March 14th Order because, in sum and substance, it gave its best effort, though concededly deadlocked and failed, and, therefore, no aid in support of litigant’s rights is available or appropriate. COAH provided no response to the procedural recommendations of FSHC, but simply stated that it acted within the timeframe of the March 14th Order and should, therefore, be exonerated from any further action or consequence despite the fact that the order clearly and unequivocally directed that:

The Council shall adopt the proposed Third Round Rules on or before October 22, 2014, and transmit the adopted Third Round Rules to the OAL to permit publication of the adoption notice in the November 17, 2014, edition of the New Jersey Register.” * * *
and that:
“ . . . in the event that the Council does not adopt Third Round Rules by November 17, 2014, then this Court will entertain applications for relief in the form of a motion in aid of litigants’ rights, including but not limited to a request to lift the protection provided to municipalities through N.J.S.A. 52:27D-313 and, if such a request is granted, actions may be commenced on a case-by-case basis before the Law Division or in the form of builders remedy” challenges; * * * (Emphasis added).

Other litigants in this case have responded to the FSHC motion and have either supported it (e.g., the New Jersey Builders Association) or opposed the requested relief and instead recommend alternative relief (e.g., the League of Municipalities and other municipal litigants). The Supreme Court has scheduled oral argument on the FSHC motion for January 6, 2015.

The motion argument and subsequent decision by the Supreme Court will test the court’s resolve when faced with action and, worse yet, inaction by an agency of the executive branch which, in this instance, has clearly violated the directives contained specifically in the court’s March 14th Order. COAH has utterly failed to adopt statutorily-mandated and constitutionally acceptable regulations.The Supreme Court long ago promised that in such instances it would act decisively:

No one should assume that our exercise of comity today signals a weakening of our resolve to enforce the constitutional rights of New Jersey’s lower income citizens. The constitutional obligation has not changed; the judiciary’s ultimate duty to enforce it has not changed.

Hills Development Co. v Bernards Twp. 103 NJ 1, 65 (1986).

Any further or continued inaction by the court to enforce its orders of September 26, 2013, and March 14, 2014, would be akin to aiding and abetting the interminable failure by New Jersey’s executive and legislative branches over the last 15 years to implement, and for the judicial branch to enforce, the constitutional obligations imposed by Mount Laurel I and Mount Laurel II, which all three branches of government are sworn and duty-bound to uphold.

Regardless of the outcome, it is clear that this issue has reached a constitutional crisis. In deciding Mount Laurel II eight years later to rectify the legislative, executive and municipal foot-dragging that resulted in the aftermath of Mount Laurel I, the court clearly meant what it said by fashioning the “builders remedy.” With respect to the March 14th Order, after 31 years of the same interstitial wrangling, the time has arrived to see if the court does now what it stated it would do in this instance.

How the Supreme Court addresses this crisis will determine much of the future of affordable housing in New Jersey. Stay tuned for what is sure to be an interesting 2015 ahead.

View the entire issue of In the Zone (pdf)