In re Adoption of N.J.A.C. 5:96 and 5:97 by N.J. Council on Affordable Housing, 221 N.J. 1 (2015). As foreshadowed by the oral argument, the Supreme Court today granted Fair Share Housing Center’s motion for relief in aid of litigants’ rights in a unanimous opinion by Justice LaVecchia. The bottom line is that the Court has dissolved requirement of the Fair Housing Act, N.J.S.A. 52:27D-301 to -329 (“FHA”), that litigants exhaust administrative remedies by proceeding through the Council on Affordable Housing (“COAH”). The Court took that step because “the administrative process has become nonfunctioning, rendering futile the FHA’s administrative remedy.”
The opinion directs that trial courts resume their pre-FHA role in determining whether municipalities have complied with their obligations under the Mount Laurel doctrine. As Justice LaVecchia stated, “[d]ue to COAH’s inaction, we agree that there no longer exists a legitimate basis to block access to the courts,” as the FHA had contemplated in establishing COAH as the primary venue for these issues. The Court delayed the effect of its ruling for 90 days to “allow all parties to prepare” for the new regime.
Justice LaVecchia reiterated that nothing in today’s opinion “should be understood to prevent COAH from fulfilling its statutory mission to adopt constitutional rules to govern municipalities’ Third Round obligations in compliance with the FHA.” She also said that the Court’s ruling should not “be regarded as impeding the Legislature from considering alternative statutory remedies to the present FHA.” Thus, as in the past, the Court’s posture is to defer to the other branches if they take valid action to enforce the constitutional Mount Laurel obligation.
All three of Governor Christie’s appointees joined in this opinion, so there can be no valid claim of “partisan bias” or “liberal judicial activism.” The Supreme Court simply reached the point of being fed up with COAH, having given the agency ample opportunity to adopt third round rules as the Court had previously required. The Court’s opinion today properly implements that prior ruling.