In Re the Declaratory Judgment Actions Filed by Various Municipalities, County of Ocean, Pursuant to the Supreme Court's Decision in in Re Adoption
152 A.3d 915
N.J.2017Background
- The Council on Affordable Housing (COAH) failed to adopt valid Third Round rules after its Second Round rules expired in 1999, leaving a 1999–2015 “gap period.”
- In Mount Laurel IV (2015) the NJ Supreme Court declared COAH defunct, reopened courts for declaratory relief, and explained that prior unfulfilled obligations remain relevant to municipal fair-share duties.
- Approximately 300 municipal declaratory actions followed; thirteen Ocean County towns’ cases were consolidated to decide whether and how to account for housing need formed during the gap period.
- The trial court held the gap need must be included as a new, separate component of Third Round obligations (distinct from prospective and present need). The Appellate Division reversed that characterization but said gap-related need could be captured within present need.
- The Supreme Court affirmed that municipalities remain constitutionally responsible for low- and moderate-income households formed during the gap and held that the correct mechanism is an expanded present-need analysis (not a new discrete category).
- The Court directed trial courts to adopt a present-need analysis that includes (a) traditional deficient/overcrowded-unit counts and (b) an analytic component estimating presently existing low- and moderate-income households formed during the gap, excluding deceased, income-ineligible, relocated, or already-counted households.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether municipalities must account for housing need created during the 1999–2015 gap | Fair Share: gap need must be counted cumulatively as part of Third Round obligations | Barnegat/League: FHA limits Third Round to prior unmet, present, and prospective need; no separate gap obligation | Towns are constitutionally obligated to account for presently existing low-/moderate-income households formed in the gap |
| Whether gap need constitutes a new, separate component of Third Round obligation | Trial court/Fair Share: gap need is a discrete component calculable from actual growth | App. Div./Barnegat: creating a separate retroactive category is unlawful policymaking and unnecessary | Rejected a free‑standing gap category; adopt expanded present-need approach instead |
| Whether gap need should be treated as prospective (forward-looking) need | NJBA/Fair Share: gap need can be included in prospective calculations or otherwise captured | League/Barnegat: "prospective need" is forward-looking by statute and cannot be retroactive | Prospective need is forward‑looking and not the proper vehicle to capture retrospective gap households |
| Appropriate analytical method to quantify gap-origin households | Experts: trial courts should evaluate competing expert methodologies; gap households may be estimated by demographic/household analyses | Municipal parties: risk of double counting and overreach; prefer unit-based present-need surveys | Courts must permit expert proof but use an expanded present-need analysis that avoids double counting and excludes ineligible/deceased/relocated households |
Key Cases Cited
- S. Burlington Cty. NAACP v. Township of Mount Laurel, 92 N.J. 158 (establishes municipal constitutional obligation to provide realistic opportunity for regional low‑ and moderate‑income housing)
- In re N.J.A.C. 5:96 & 5:97 (Mount Laurel IV), 221 N.J. 1 (declares COAH defunct, reopens judicial forum, preserves prior obligations and sets process for certification substitute)
- In re Adoption of N.J.A.C. 5:96 & 5:97, 215 N.J. 578 (addresses limits on growth‑share prospective need and COAH rulemaking review)
- In re Twp. of Warren, 132 N.J. 1 (describes present‑need focus on deficient housing units occupied by low‑ and moderate‑income households)