In response to COAH’s failure to pass Revised Third Round Rules by November 17th, as ordered by NJ Supreme Court (see COAH’S REVISED THIRD ROUND RULES ENDS IN STALEMATE), the Fair Share Housing Center has filed a motion requesting that the trial courts take on the task of ensuring that towns in NJ develop low to moderate income housing. They are suggesting that a special court be established to hear cases involving the development of housing, similar to what had occurred immediately following the Mount Laurel II decision in 1983. In other words, COAH would no longer be able to protect towns from what has become known as Builder’s Remedy lawsuits; lawsuits brought on by developers to force towns to allow them to build housing regardless of their ability to support the resulting population growth.
Many believe the courts went too far in Mount Laurel II; the courts are suppose to interpret the law not create it. By established guidelines and formulas for determining whether or not a municipality was practicing exclusionary zoning, the courts were, in fact, legislating from the bench. The response by the NJ State Legislature was to create and pass the Fair Housing Act of 1985 which established the Council on Affordable Housing (COAH). Although the council was able to provide protection for municipalities that participated in their program, endless court challenges from all sides rendered COAH ineffective.
Governor Christie had tried to abolish COAH while retaining the protection for municipalities against Builder’s Remedy lawsuits but the NJ State Legislature would not allow it. They instead, proposed alternative legislation that removed these protections giving Governor Christie no choice but the veto it.
If the Fair Share Housing Center’s motion is upheld, New Jersey will once again become the Wild West of affordable housing. One of the biggest challenges for the courts is, if there is no COAH, who is determining what the affordable housing obligation is for each municipality and how will it be determined?
Oral arguments are scheduled to be heard by the NJ Supreme Court on January 6th, at 10AM. The hearing is open to the public and you can call 609-984-7791 to reserve a seat.