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The New Jersey Supreme Court, in Mount Laurel I (1975) and Mount Laurel II (1983) required all New Jersey municipalities to take affirmative actions toward providing their “fair share” of the region’s need for affordable housing for low- and moderate-income people. In response to the Mount Laurel II decision, the New Jersey Legislature adopted the Fair Housing Act (FHA) in 1985. This act created the Council on Affordable Housing (COAH) to assess the statewide need for affordable housing, allocate that need on a municipal fair share basis, and review and approve municipal housing plans aimed at implementing the local fair share obligation.
Subsequently, the New Jersey Municipal Land Use Law (MLUL) was amended to require a housing element as a mandatory element of the municipal master plan. According to the MLUL, “a municipality's housing element shall be designed to achieve the goal of access to affordable housing to meet present and prospective housing needs, with particular attention to low and moderate income housing (52: 27D-310).”
Long Hill Township received Substantive Certification from COAH for Round 2 on August 2, 1995. The Township’s prior round obligation was 85 units, of which 23 were rehabilitation and 62 units were new construction. Long Hill Township has fully addressed its prior round obligation of 62 new construction credits through developments at Chestnut Run, Stirling Manor, Lounsberry Meadow, an accessory dwelling unit program, and a Regional Contribution Agreement (RCA) with the City of Newark for 42 family units. (RCAs were agreements that permitted a sending municipality to provide funding to a receiving municipality to either rehabilitate existing affordable units or create new affordable units. The sending municipality received credit towards its affordable housing obligation for each unit rehabilitated or created in the receiving municipality. The use of RCAs was abolished in 2008 by the State Legislature in amendments to the Fair Housing Act.)
On July 23, 2001, Long Hill requested interim Substantive Certification from COAH. On December 12, 2004, the Township applied for a one-year extension of Second Round certification and committed to applying for Third Round certification by December 20, 2005. COAH granted this motion on February 9, 2005.
COAH adopted its Third Round Regulations on December 20, 2004, requiring Long Hill Township to petition for Third Round Substantive Certification in order to remain under COAH’s jurisdiction. The Long Hill Township Planning Board and Township Committee both adopted the Housing Element and Fair Share Plan in December 2005 and petitioned to COAH for Third Round Certification in late 2005. On October 6, 2006, COAH issued a report requesting additional information.
On January 25, 2007, the Appellate Division issued a decision on an appeal of COAH’s Third Round regulations, which required COAH to revise its Third Round Rules and precluded COAH from issuing Third Round Substantive Certifications until the new rules were adopted. As a result, Long Hill’s Petition for Third Round Substantive Certification was put on hold during the rule making process.
On May 6, 2008, COAH adopted new Third Round rules, which became effective on June 2, 2008. At the same time, COAH proposed amendments to those rules. Those amendments were published in the New Jersey Register on June 16, 2008. The amendments were adopted on September 22, 2008, with an additional amendment proposed on the same day. The amended rules were then adopted on October 20, 2008. As a result of the newly adopted Third Round Substantive Rules, communities petitioning to COAH for Third Round Substantive Certification were required to submit updated Housing Elements and Fair Share Plans that met the new rules by December 31, 2008.
On December 16, 2008, the Township of Long Hill Planning Board adopted the Housing Element and Fair Share Plan of the Township Master Plan, and the following day, the Township Committee passed Resolution 08-426 endorsing the Housing Element and Fair Share Plan and filing petition for substantive certification with COAH. This Plan contained several techniques for Long Hill Township to meet its affordable housing obligation. These techniques included the creation of ten (10) accessory apartments; continuation of a successful municipal rehabilitation program; establishment of a group home for the developmentally disabled with five (5) units; the development of 33 units of age-restricted housing in the Valley Road Business District area and the Lounsberry Meadows development; and an inclusionary zoning ordinance for 24 units of affordable units at the Valley Road Business District Area and the TIFA mixed-use site. The Plan also acknowledged 70 units credited from Prior Rounds.
On December 29, 2008, Long Hill Township filed a petition for Substantive Third Round Certification with COAH. Long Hill received a determination of completeness for its petition on May 21, 2009, and on July 31, 2009, Long Hill received notice stating no objections to the petition had been received.
Following the submission, on October 8, 2010, the Appellate Division invalidated COAH’s Rules in In re Adoption of N.J.A.C. 5:96 & 5:97 by the New Jersey Council on Affordable Housing, 416 N.J. Super. 462 (App. Div. 2010). The decision stated, among other things, that growth share methodology was invalid, and directed COAH to adopt rules utilizing methodologies similar to those used in the first and second round rules.
On September 26, 2013 the Supreme Court affirmed the Appellate Division’s 2010 Decision and remanded to COAH to undertake new rulemaking based on COAH’s prior round rules and methodologies. COAH failed to formally adopt amended Third Round rules. The Supreme Court on March 10, 2015 ordered the following:
- The Fair Housing Act’s exhaustion of administrative remedies requirements is dissolved and the Courts may resume their role as the forum of first resort for evaluating municipal compliance with Mount Laurel obligations.
- The effective date of the Order was June 8, 2015.
- Municipalities that were under COAH’s administrative review were permitted to file declaratory judgment actions with the Court by July 8, 2015.
Long Hill filed a Declaratory Judgment action on July 6, 2015 seeking a declaration of its compliance with the Mount Laurel doctrine and Fair Housing Act of 1985, N.J.S.A. 53:27D-301 et seq. in accordance with In re N.J.A.C. 5:96 and 5:97, supra. Fair Share Housing Center (FSCH) is participating in the case with the Township. FSHC and the Township appeared before the Honorable Stephan Hansbury for case management conferences on August 11, 2015, October 13, 2015, June 9, 2016 and October 27, 2016 and attended an out-of-court settlement conference in Morristown on June 8, 2016. The Township and FSHC have been in settlement discussions in an effort to bring the Declaratory Judgment filing to a conclusion. Judge Hansbury retired in November and Judge Hubner is taking over Long Hill’s case. The next hearing before Judge Hubner is scheduled for December 15, 2016 at 10:00 a.m.