Appellate Division Grants Leave to Appeal to Affordable Housing Decision, While Trial Courts Continue Towards Trial and Compliance Hearings

On April 11, 2016, the Appellate Division issued an order granting a motion by the Township of Barnegat for leave to appeal a decision by the Hon. Mark A. Troncone, J.S.C., designated Mt. Laurel judge for Ocean County, and also granted a number of motions for other municipalities from outside of Ocean County to appear as amici curiae in the case. The order returns the question of methodology – a hotly contested issue – to the Appellate Division. The counties comprising Region 4 (Mercer, Monmouth, and Ocean counties) of the Council on Affordable Housing (“COAH”) were set to be among the first to hold trials regarding the methodology for determining the municipal fair share housing obligations of municipalities. The grant of leave to appeal in the Ocean County case will necessarily delay any trial in that vicinage until the resolution of the appeal. This post briefly reviews the trial court’s decision, and the potential impact the decision to grant leave to appeal may have on pending declaratory judgment cases.

On February 18, 2016, the Hon. Mark A. Troncone, J.S.C. issued an opinion in which he determined as a matter of law that municipalities were required to comply with their constitutional obligation to provide realistic opportunities for the construction of housing affordable to low- and moderate-income families that had accumulated during the period from 1999-2016. This period is known as the gap period because COAH failed to promulgate lawful rules for determining fair share housing obligations during this period. Municipalities had generally claimed that requiring such an obligation would run contrary to the language of the New Jersey Fair Housing Act, which provides guidance for the determination of a prospective and present need, but does not make any pronouncements regarding the accrual of past need. Housing advocates and developers, however, pointed out that municipalities had, since 1999, always assumed the obligation was cumulative in their proposals to COAH and the courts, and, further, that the municipal reading of the Fair Housing Act is plainly contrary to the Appellate Division’s decision in In re Six Month Extension of N.J.A.C. 5:91-1, 372 N.J. Super. 61 (App. Div. 2004), where they relied on representations by municipalities and COAH that any obligation accruing during the gap period after the expiration of the Second Round Rules would be captured in the future Third Round Rules. Troncone’s decision recognized that the obligation itself is cumulative, and that by its very nature, it can have no gaps, echoing the language of the Supreme Court in Southern Burlington County NAACP v. Tp. of Mt. Laurel, 92 N.J. 158 (1983). The decision required, among other things, that the expert retained by municipalities – Econsult Solutions, Inc. – revise their estimates of the prospective need to include data from the period from 1999-2016, which led to an increase in the projections for future prospective need from approximately 35,000 units to over 72,000 units.

The Township of Barnegat sought leave to appeal Troncone’s decision, asserting that requiring municipalities to comply with the Mt. Laurel obligation arising during the period from 1999 to 2016 was contrary to law, as it had before the trial court, and raising concerns regarding the costs to municipalities for compliance. Both Fair Share Housing Center and the New Jersey Builders Association opposed this motion.

It is unclear how the Appellate Division’s grant of the motion for leave may affect timetables in other vicinages. In Middlesex County, for instance, the Hon. Douglas K. Wolfson, J.S.C., has issued an order denying South Brunswick’s request for a stay of proceedings pending the outcome of this appeal. Other counties appear to still be proceeding toward trial and compliance hearings, and the first such trials regarding methodology appear scheduled for this summer.

Cameron W. MacLeod is an Associate in the Gibbons Real Property & Environmental Department.
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