In the wake of the New Jersey Supreme Court’s decision in In re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) (“In re N.J.A.C. 5:96 II”), the Court required municipalities to file declaratory judgment actions before the assigned Mount Laurel Judges. The Firm filed the required action representing Stafford Township. Thereafter, the Firm, as well as numerous other law firms representing various Ocean County municipalities filed an appeal to the Appellate Division concerning the narrow legal issue whether a “separate and discrete” gap-period affordable housing obligation is authorized by (1) the core principles of the Mount Laurel doctrine, as codified in the Fair Housing Act of 1985; and (2) In re N.J.A.C. 5:96 II. Resolution of this legal question specifically addresses whether a municipality’s prospective need involves a retroactive housing obligation starting in 1999.
On appeal, the Appellate Division in a published opinion rendered on July 11, 2016 ruled in favor of the Ocean County municipalities applying the core principles of the Mount Laurel doctrine and the plain language of the Fair Housing Act, including its unambiguous definition of “prospective need”–a forward “projection of housing needs based on development and growth which is reasonably likely to occur in a region or a municipality and following the Supreme Court’s admonition not to become an alternative administrative decision maker for unresolved policy issues surrounding the Third Round Rules, held that the Fair Housing Act does not require a municipality to retroactively calculate a new “separate and discrete” affordable housing obligation arising during the gap period. The previous methodologies employed in the First and Second Round Rules should be used to establish present and prospective statewide and regional affordable housing need and prior round unfulfilled obligations should be the starting point for a determination of a municipality’s fair share responsibility.