When last we left the saga of the Council on Affordable Housing (“COAH”) and its “third round rules” for the calculation of municipal obligations for low and moderate-income housing, the Supreme Court, over the dissent of Justice Albin, had given COAH an extended deadline of November 17 to promulgate and publish a notice of adoption of those rules. However, when the deadline arrived, COAH did not adopt third round rules. Two votes on rules that were proposed for adoption failed by 3-3 tie votes. The first of those votes was on a motion to table the proposed rules as not compliant with the Supreme Court’s mandate. When that motion failed to gain a majority, another motion was made to adopt the proposed rules. Again, a deadlock resulted.
As a result, the Fair Share Housing Center brought a motion in aid of litigants’ rights, seeking to have the Court declare that COAH’s inaction means that municipalities are no longer protected from exclusionary zoning litigation. Fair Share also has asked the Court to designate trial level judges to develop a “consistent methodology” for the implementation of the Court’s prior rulings regarding low and moderate-income housing. Fair Share’s brief concludes by urging that “[t]his should be the end; there should be no more extensions, no further last chances.”
The Fair Share submission contains an appendix of documents that embody the underlying facts and procedural history, which form the basis for the first two paragraphs of this post. There appears to be no dispute about what has occurred. Unsurprisingly, however, there are different views as to whether Fair Share’s motion should be granted. Responses to Fair Share’s motion were filed by COAH, the New Jersey League of Municipalities, and certain municipalities themselves, all of whom opposed the relief sought. Among other things, COAH and its supporters argued that COAH had not acted contumaciously, but had tried in good faith but simply failed to adopt rules as required. The submissions by the municipalities and their League also contended that municipalities, who “did nothing wrong,” should not be “punish[ed] … for COAH’s temporary deadlock.” The New Jersey Builders Association and certain builders filed papers that endorsed the remedies sought by Fair Share. All of those submissions, on all sides, are available here.
The Court has scheduled oral argument on Fair Share’s motion for January 6, 2015 at 10 A.M. That oral argument can be viewed live here. It should be very interesting. As noted above, Justice Albin previously stated his view that COAH should not have been given any more chances, so Fair Share presumably goes into the argument with his vote in their favor.
The press has begun to take notice of the upcoming oral argument. This past Saturday, December 27, the Philadelphia Inquirer ran a front page article about this matter and its background. [Disclosure: I am quoted in that article]. That article, available here, provides useful background in readable fashion. Also on that date, the New York Times published an editorial about Fair Share’s motion, concluding with the admonition that “[t]he court should tolerate no further delays.”