Agenda - Planning Commission - 06/04/2015

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Zoning Bulletin April 25, 2015 1 Volume 9 1 Issue 8 enacted the Fair Housing Act of 1985 ("FHA") (N.J.S.A. 52:27D-301 to -329). The FHA was enacted in order to assist municipalities with their constitutional obligation to regulate zoning "in a manner that cre- ates a realistic opportunity for producing a fair share of the regional present and prospective need for housing low- and moderate -income families." The FHA created the Council on Affordable Housing ("COAH"). COAH was "designed to provide an optional administra- tive alternative to litigating constitutional compliance through civil exclusionary zoning actions." Under the FHA, municipalities may resolve disputes over their constitutional affordable housing obliga- tions in the judicial forum or through a FHA -preferred administrative forum. In support of the preference of addressing such disputes in the administrative forum, the FHA requires exhaustion of administrative remedies before pursuing judicial remedies. The FHA also compels COAH to "establish and periodically update presumptive constitutional housing obligations for each [New Jersey] municipality and to identify the permissible means by which a [municipality]'s proposed affordable housing plan, housing element, and implementing ordinances can satisfy its obligations." COAH is required to update municipal housing obligations and corresponding substantive procedural rules. COAH's rules governing the last round of municipal housing obliga- tions expired in 1999 (the "Second Round Rules"). Since then, COAH has failed to adopt updated regulations —the "Third Round Rules." By order of the Supreme Court of New Jersey, COAH was required to adopt Third Round Rules by November 17, 2014. COAH failed to do so. As a result, Fair Share Housing Center ("FSHC") brought a motion in aid of litigants' rights, seeking a remedy from COAH's failure to adopt the Third Round Rules. DECISION: Ordered accordingly. Finding itself in "the exceptional situation in which the administra- tive process has become nonfunctioning, rendering futile the FHA's administrative remedy," the Supreme Court of New Jersey, as relief for the failure of COAH to adopt Third Round Rules for the calculation of affordable housing needs and criteria for satisfaction of those needs, is- sued an order effectively dissolving (until further order) the FHA's exhaustion -of -administrative -remedies requirement. In so holding, the court looked at Court Rules 1:103 and 4:59-2(a), finding they provided support for "assisting a litigant in securing relief... ." The court found that although punitive or coercive relief under Rule 1:10-3 (governing the motion in aid of litigants' rights) could not be used against one who was not a willful violator of a judg- ment (such as, arguably here, COAH), that did "not foreclose the vindication of litigants' rights through other forms of non -punitive and non -coercive orders entered pursuant to Rule 1:10-3's authority en- © 2015 Thomson Reuters 9