The Supreme Court Hears Argument on Fair Share Housing Center’s Motion for Contempt Against COAH

As previewed here, today was the day on which the Supreme Court heard oral argument on the application of the Fair Share Housing Center to hold the Council on Affordable Housing (“COAH”) in contempt for failing to adopt third round rules as the Court previously required.  After an argument that lasted over three hours, there appears to be at least a majority, and perhaps even unanimity, among the members of the Court in favor of taking some action to allow proponents of affordable housing once again to resort to litigation instead of being limited to COAH procedures, in light of COAH’s inaction.

The tone for the argument was set when Justice LaVecchia, presiding in the absence of Chief Justice Rabner, opened the argument by asking the State whether COAH had met or taken any action following the October deadline.  The State responded that COAH had not met and had not taken any action, and she could not represent or guarantee anything about the future.  Members of the Court, including at least Justice Albin, Justice Solomon, and Judge Cuff, seemed to conclude from that, and from the whole sequence of events, that some action by the Court is required.  Judge Cuff said “COAH is not doing its job.  What other choice do we have?”  Justice Solomon said if the Court had something before it that might indicate the potential for action by COAH, that would be one thing, but there is no indication of that.  And Justice Albin, among many other statements that revealed his viewpoint, asked how much longer poor people must wait, after fifteen years of COAH inaction?

There was plenty of questioning of Fair Share, which was the first party to be heard.  But much of that questioning, especially by Justices LaVecchia and Patterson, related to by what means and under what authority the Court could act.  Indeed, Justice Patterson asked many of the advocates how action that those parties asked the Court to take could be consistent with the doctrine of separation of powers and/or with the Fair Housing Act (“FHA”) which, after all, has not been repealed.  Fair Share responded that in Hills v. Bernards Tp., 103 N.J. 1 (1986), known to many as “Mount Laurel III,” the Court said that if the FHA achieves nothing but delay, the Court could return to the field to enforce the constitutional Mount Laurel obligation.  Similarly, Justice Solomon asked both COAH and amicus New Jersey Builders Associatioon whether the Court had power to direct the adoption of the proposed rules on which COAH deadlocked.

Justices Albin and Fernandez-Vina  expressed interest in how many units of affordable housing had not been constructed as a result of COAH’s inaction.  Neither Fair Share nor the New Jersey Builders Association could offer firm numbers about that, since no such statistics are kept, though they gave an estimate of tens of thousands of units.

Fair Share argued that the immunity from suit that the FHA affords to municipalities could be made available in court, but only on a case-by-case basis, after a showing that a particular municipality deserves it.  “Immunity should be earned.”  Fair Share sought a return to the litigation forum, saying that the FHA contempates that in appropriate circumstances.  In summary, Fair Share argued, if exhaustion no longer applies, the Court should direct six judges in the six existing Mount Laurel regions to calculate through a process in which anyone can paticipate, to come up with fair share numbers.  At that point, adversarial proceedings would begin, which might or might not include immunity or a builder’s remedy.  Any settlement (and, historically, most affordable housing cases did settle) would be subject to court approval, in the nature of a class action fairness hearing, as to the reasonableness of the settlement, a mechanism that has been used before in land use cases.

Justices Patterson and Fernandez-Vina did each ask about whether the fact that COAH voted on but did not pass proposed rules presented a different circumstance, in terms of contempt, than one in which COAH refused to take any action in response to the Court’s prior rulings.  Thus, it is not inconceivable that there could be some votes not to take action.  But it appeared that the sense of the Court as a whole, and perhaps even those two Justices, was in favor of action.

Perhaps as a result, there was little argument by the opponents of Fair Share that the Court should not act.  Even amici in support of COAH directed the bulk of their remarks to measures that the Court mgiht take, and those that the Court should not take, if the Court concluded that some action was required.  Everyone, on both sides, agreed that COAH continues not to be precluded from taking action, as the Court previously both ordered and urged it to do.  Counsel for one amicus, citing his love of baseball, said that COAH was “in the bullpen,” and cold emerge from there with proposed regulations whenever it wanted.  But meanwhile, he urged the Court to act, noting that as a result of the lack of results from the COAH process for fifteen years, “an entire generation” has grown up without enforcement of the constitutional Mount Laurel obligation.

One amicus for COAH did argue that COAH should be directed to meet again and to provide the Court with periodic reports.  No member of the Court seemed impressed with that idea.  Justice Solomon asked that amicus what its suggestion would be if the Court did not adopt its “meet again and report periodically” idea, indicating that he was not inclined to adopt that idea.

There was much discussion about towns that had applied for, or even received (under later invalidated rules), substantive certification from COAH.  Justice Patterson asked whether, given that those towns had relied on the COAH process, they should not be subject to litigation.  The municipal amici similarly focused on not “punishing” towns with litigation.  There was debate about whether, if the Court reactivates the litigation process, municipalities that had entered the COAH process (approximately 300 towns fall into that category, the Court was told) should get the benefit of immunity right away, subject to divestment by a court if an opponent of the municipality carries the burden of showing why immunity should be stripped, or whether immunity should wait until someone files a builder’s remedy suit.

There was much more.  The webcast of the argument is well worth watching.  It appears most likely that the Court will issue an opinion, not too long from now, that gives some relief to Fair Share and to developers.  Exactly what form that releif will take remains to be seen.