On this date in 1986, the Supreme Court decided Hills Dev. Co v. Bernards Tp., 103 N.J. 1 (1986). At the time, it was one of the Court’s most important decisions, both in terms of land use law and in regard to the politics that accompanied (and continues to accompany) low and moderate-income housing and the constitutionally-based Mount Laurel doctrine.
The Court’s unanimous opinion and appendix, written by Chief Justice Wilentz, consumes 75 pages of volume 103 of New Jersey Reports. The essence of the decision is captured by its first sentence: “In this appeal we are called upon to determine the constitutionality and effect of the ‘Fair Housing Act”‘(L. 1985, c. 222), the Legislature’s response to the Mount Laurel cases.” The central component of the Fair Housing Act, of course, was its establishment of an administrative agency, the Council on Affordable Housing (“COAH”). The Legislature intended to remove low and moderate-income housing issues from the courts, whom many viewed as too willing to impose such housing on municipalities, and assign those issues instead to COAH, which was expected to be more friendly to municipalities. Several dozen different law firms, the listing of whom occupies four full pages of New Jersey Reports, briefed or argued the case, which actually consisted of about three dozen consolidated cases. (More scorekeeping: the caption runs from 108 N.J. 1 to 108 N.J. 8).
The Court upheld the constitutionality of the Fair Housing Act, rejecting arguments by the developers that the statute betrayed the constitutional imperative of the Mount Laurel doctrine. In Mount Laurel II (Southern Burlington Cty. NAACP v. Mount Laurel Tp., 92 N.J. 158 (1983)), the Court had stated its “readiness to defer” to the political branches if they came up with a way to implement the constitutional doctrine. Hills noted that, in adopting the Fair Housing Act, those branches “have responded. It appears to be a significant response. It is a response more than sufficient to trigger our ‘readiness to defer.'” Parties still had recourse to the courts to review COAH decisions, if appropriate.
Ironically, COAH did not turn out to be as pliable as anti-Mount Laurel advocates hoped. The agency adopted several rounds of rules that were severely criticized by both municipalities and developers. The courts had occasion to admonish COAH for its failures in multiple instances. Ultimately, the Legislature voted COAH out of existence.
Nonetheless, Hills remains a landmark. Among other things, it demonstrates that the Supreme Court, often accused by some of activism and excessive zeal to displace the political branches, does defer to those branches when they take appropriate action, even in as politically-charged an arena as Mount Laurel housing.