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Sunday, July 17, 2016

IN RE DECLARATORY JUDGMENT ACTIONS FILED BY VARIOUS MUNICIPALITIES, COUNTY OF OCEAN, PURSUANT TO THE SUPREME COURT'S DECISION IN In Re Adoption of N.J.A.C. 5:96, 221 N.J. 1 (2015) A-3323-15T1

IN RE DECLARATORY JUDGMENT ACTIONS FILED BY VARIOUS
          MUNICIPALITIES, COUNTY OF OCEAN, PURSUANT TO THE
          SUPREME COURT'S DECISION IN In Re Adoption of N.J.A.C.
          5:96, 221 N.J. 1 (2015)
A-3323-15T1
We granted leave to appeal from an order entered by a designated Ocean County Mount Laurel judge requiring the court's Special Regional Master to include, as a new, "separate and discrete" component, an additional calculation for establishing a municipality's affordable housing need from 1999 to 2015 (the gap period). In entering the order, the judge concluded that a municipality's fair share affordable housing obligation for the third-round cycle is comprised of (1) its newly-created, court- imposed, "separate and discrete" gap-period obligation; (2) unmet prior round obligations from 1987 to 1999; (3) present need; and (4) prospective need.
The narrow legal issue on appeal is whether such a retrospective obligation is authorized by (1) the core principles of the Mount Laurel doctrine, as codified in the Fair Housing Act of 1985 (FHA), N.J.S.A. 52:27D-301 to -329; and (2) In re Adoption of N.J.A.C. 5:96 & 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015). Resolution of this legal question specifically addresses whether a municipality's prospective need involves a retroactive housing obligation starting in 1999. We focused on the propriety of the court's conclusion that such a "separate and discrete" obligation was "constitutionally mandated."
Applying the Mount Laurel doctrine and the plain language of the FHA, including its unambiguous definition of "prospective need" a forward "projection of housing needs based on development and growth which is reasonably likely to occur in a region or a municipality" and following the Supreme Court's admonition not to become an alternative administrative decision maker for unresolved policy issues surrounding the Third Round Rules, we held that the FHA does not require a municipality to retroactively calculate a new "separate and discrete" affordable housing obligation arising during the gap period. We acknowledged that identifiable housing need that arose during the gap period would be captured by a town's present need obligation.
We emphasized that under our tripartite system of government, the imposition of a new retrospective calculation, designed to establish affordable housing need during the gap
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period a new methodology that essentially addresses "unresolved policy details of replacement Third Round Rules" is best left for consideration by the Legislative and Executive branches of government, where public policy issues associated with such an additional obligation can be fairly and fully debated in the public forum. The Legislature may craft new legislation addressing such a retrospective need that may have arisen during any gap period between housing cycles if that is the course it wishes to take. Enforcement of subsequent legislation promoting affordable housing needs and its effect on a municipality's Mount Laurel obligation would still be a matter that may be brought to the courts.