“Pent-Up” Demand for Low and Moderate Income Housing Must be Accounted for as Part of “Present Need”

In re Declaratory Judgment Actions Filed by Various Municipalities, 227 N.J. 508 (2017).  In the Appellate Division decision in this case, reported at 446 N.J. Super. 259 (App. Div. 2016), and discussed here, the panel faced the question of whether a municipality’s affordable housing need for the period of 1999-2015 (a time when the Council on Affordable Housing failed to adopt valid third-round rules for calculating municipal fair share obligations for low and moderate-income housing) needed to be accounted for, and how.  The panel reversed a Law Division decision that had mandated the inclusion of this “gap period” calculation as a “separate and discrete component.”

The Supreme Court granted leave to appeal, expedited the matter, and today affirmed the Appellate Division’s decision as modified.  Writing for a 6-0 Court (Chief Justice Rabner did not participate), Justice LaVecchia strove to harmonize the Law Division and Appellate Division opinions.

The first question was whether the “gap period” need had to be addressed.  Justice LaVecchia emphatically stated “we waste no time in settling that issue.  There is no fair reading of this Court’s prior decisions that supports disregarding the constitutional obligation to address pent-up affordable housing need for low- and moderate-income housing households that that formed during the years in which COAH was unable to promulgate valid Third Round Rules.”

The remaining issue was how to accommodate the “gap period.”  On that question, Justice LaVecchia ruled that the gap period was to be included as a component of “present need,” a “malleable” term not defined by statute but instead originated by the Court in a prior Mount Laurel decision.  The Court mandated “an expanded definition of present need.  The present-need analysis must include, in addition to a calculation of overcrowded and deficient housing units, an analytic component that addresses the affordable housing need of presently existing New Jersey low- and moderate-income households, which formed during the gap period and are entitled to their delayed opportunity to seek affordable housing.”  Justice LaVecchia cautioned, however, that this calculation must take care not to include deceased, income-ineligible, or already accounted-for persons or households.

Finally, in keeping with the Court’s consistent tradition of being willing to defer to executive or legislative action in the area of Mount Laurel housing, Justice LaVecchia did not “discount the possibility that the executive branch agency will resurrect and operate constitutionally.  Additionally, we recognize, as we have before, that the Legislature is not foreclosed from considering alternative methods for calculating and assigning a municipal fair share of affordable housing, and to that end, we welcome legislative attention to this important social and economic constitutional matter.”  For now, however, the Court has resolved the “gap period” issue, and trial courts (acting in lieu of COAH after the Supreme Court’s last major Mount Laurel decision) will sort that issue out in further detail.

Leave a Reply