Agenda - Planning Commission - 04/06/2017

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Zoning Bulletin March 10, 2017 I Volume 11 I Issue 5 versed the decision. While the Appellate Division recognized that the af- fordable housing need that arose during the gap period was a responsibil- ity of the municipalities, it held that "the FHA does not require a municipality to retroactively calculate a new `separate and discrete' af- fordable housing obligation arising during the gap period." The court pointed to language of the FHA that prevents a retroactive calculation of "prospective need" (defined as a "forward -looking projection of house- hold growth"). Rather, the court observed that, to the extent that "[low - and moderate -income] households formed during the gap period" might be living in overcrowded or deficient housing, the need that arose during the gap would be "partially included" in the calculation of present need (i.e., "the actual number of deficient housing units occupied by low- and moderate -income households"). That Appellate Division's decision was also appealed. DECISION: Judgment of Appellate Division affirmed as modified. Agreeing with both thetrial court and the Appellate Division, the Supreme Court of New Jersey held that municipalities were required to address the need for low- and moderate -income housing that arose during the gap period (i.e., 1999-2015) during which COAH failed to promulgate viable Third Round rules. The court found it clear that the municipalities had a "constitutional obligation to address pent-up affordable housing need for low- and moderate -income household that formed during [the gap period]." Specifically, the court concluded that: "the need of presently existing low- and moderate -income households formed during the gap pe- riod must be captured and included in setting affordable housing obliga- tions for towns that seek to be protected from exclusionary zoning actions under the process this Court has set up while COAH is defunct." The Supreme Court of New Jersey agreed with the Appellate Division, with some modification, as to how to account for the affordable housing need that arose during the gap period. The Appellate Division had concluded that the "permissible categories within which to work, when considering how to accommodate need arising during [the gap period], were: unfulfilled prior cycle obligations, prospective need, and present need." The Appellate Division had rejected the trial court's addition of a "separate and discrete" category for recognizing needs that arose during the gap period. In agreeing with the Appellate Division as to the three permissible cat- egories for determining municipal affordable housing obligation, the Supreme Court of New Jersey noted that it had, in prior case law, expressly directed the first category —unfulfilled prior cycle obligations. It also agreed that "prospective need" was an "inapt fit" for the need aris- ing during the gap period because the FHA definition of "prospective need" rendered the term "forward -looking": "a projection of housing needs based on development and growth which is reasonably likely to oc- cur in a region or a municipality" within the next housing cycle. (N.J.S.A. 52:27D-304(j).) Finally, the court concluded that "present need offers the best approach to capturing the [gap period] need that must be addressed." 2017 Thomson Reuters 7