Agenda - Planning Commission - 04/06/2017

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March 10, 2017 I Volume 11 I Issue 5 Zoning Bulletin New Jersey municipalities were required to address the need for low- and moderate -income housing that arose during a sixteen -year period of time during which New Jersey's Council on Affordable Housing failed to promulgate viable rules for construction of such housing. More specifi- cally, the case addressed whether municipalities were constitutionally ob- ligated to provide a realistic opportunity for their fair share of affordable housing for low and moderate -income household formed during that gap period of time and presently existing. The case further addressed how any obligations from that gap period of time must be accounted. The Background/Facts: Municipalities in New Jersey have been found to have a constitutional obligation to provide their fair share of the affordable housing need of low and moderate -income households. More specifically, New Jersey law recognizes that municipalities have a constitutional obligation to use their zoning power in a manner that cre- ates a "realistic opportunity for the construction of [their] fair share" of the region's low -and moderate -income housing. That obligation was first recognized by courts and then codified in 1985 by the New Jersey Legislature, which enacted the state's Fair Housing Act ("FHA") and cre- ated the Council on Affordable Housing ("COAH") to facilitate and moni- tor compliance with the constitutional mandate. COAH was tasked with determining and assigning municipal affordable housing obligations through promulgation of procedural and substantive rules for successive housing cycles. COAH adopted rules to govern its first and second hous- ing cycles but failed to propose valid new rules for the third housing cycle. Having failed to produce valid rules from 1999 through 2015, in March 2015, the New Jersey Supreme Court declared COAH defunct. The court also eliminated the FHA's exhaustion -of -administrative -remedies require- ment and provided for a judicial forum to adjudicate affordable housing disputes. In 2015, in an attempt to ascertain their fair share obligation of afford- able housing needs, thirteen Ocean County municipalities filed declara- tory judgment actions in the courts. Those actions were consolidated. The municipalities argued that their fair share obligations only included "pre- sent need" and "prospective need," and that they had no obligation for the needs during the sixteen -year gap period (i.e., 1999-2015). Finding that the "fair share obligation is cumulative," the trial court held that the municipalities were constitutionally required to recognize needs that arose during the gap period. The court held that such need was not a part of "prospective need," but rather constituted a "separate and discrete component" of the fair share obligation. Accordingly, the trial court held that the municipalities' "Third Round" (i.e., third housing cycle) obliga- tion consisted of four components: (1) prior (First and Second) round unmet obligations; (2) the need arising during the gap period; (3) a traditional present -need analysis; and (4) calculation of prospective need for the 2015-2025 period. The trial court's decision was appealed. The Appellate Division re- 6 © 2017 Thomson Reuters