The New Jersey Legislature may re-introduce a bill this year to abolish the Council on Affordable Housing (COAH) and create a judicially administered process to determine regional affordable housing need, provide deadlines for municipalities to adopt housing elements and fair share plans to address the municipal calculation of its regional fair share, and provide an alternative dispute resolution process to address concerns and challenges to municipal affordable housing compliance plans. The legislation was first introduced in December 2023 as A4 / S4251[1], but the session ended before lawmakers could pass the bill.
The proposed legislation authorizes the Chief Justice to appoint an “obligation special master” for each of the housing regions established by the bill. The northern region will consist of prior COAH regions 1 and 2, the central region being prior COAH regions 3 and 4, and the southern being prior COAH regions 5 and 6. The obligation special master shall follow a truncated version of Judge Mary C. Jacobson’s methodology (see In Re West Windsor, unpublished trial court decision) to determine the regional affordable housing need in each of the three regions. Once the obligation special master has calculated the regional need, the regional obligations are to be posted on a new website in the Judiciary for the Affordable Housing Dispute Resolution Program. The regional calculation of affordable need is to be completed by November 15, 2024.
Under the present version of the bill, all municipalities will determine their present and prospective fair share obligation by adoption of a resolution committing the municipality to create an affordable housing element and fair share plan to meet the stated fair share obligation in the resolution (need resolution). The need resolution must be adopted by January 31, 2025. Failure to meet the January 31, 2025 deadline will result in a municipality’s loss of immunity from builder’s remedy litigation. Municipalities are not bound by the regional fair share determination established by the obligation special master. The municipal determination of its regional fair share obligation has been problematic in the prior third round decisions (See In re Adoption of N.J.A.C. 5:94 & 5:95, 390 N.J. Super. 1 (App. Div. 2007) and In re Adoption of N.J.A.C. 5:96 & 5:97 (Mount Laurel IV), 221 N.J. 1 (2015)). This aspect of the bill may trigger litigation as to its constitutionality.
As currently proposed, the bill would allow municipalities to place a cap on their prospective need at the lesser of 1,000 units in total or 20% of the total number of households in such municipality according to the most recent federal decennial census. The bill also limits the amount of certain units in a fair share plan for which municipalities can obtain credit (e.g. age-restricted housing are limited to 33% and transitional housing[2] to 15% of the units in a plan).
Following the adoption of a need resolution establishing the municipality’s fair share obligation on or before January 31, 2025, any opposition by an interested party to this calculation must be filed by February 28, 2025. If an objection is timely filed, the bill requires that the dispute be resolved by April 1, 2025. The dispute will be considered and mediated under the oversight of the program. The program will consist of three to seven retired judges or qualified experts selected by the chief justice. The Chief Justice may take into consideration such retired judges’ or qualified experts’ political party membership (i.e. so as to ensure a balance of political representation) and experience with affordable housing and alternative dispute resolution. While the program’s determination as to disputes would be treated as a final agency decision, such a decision would still be subject to appellate review. It is extraordinarily problematic to meet the fair share plan dispute resolution deadlines, given prior experience in the third round. Expect substantive modifications to these deadlines in the final version of the bill.
Municipal fair share plans and housing elements addressing the calculated regional fair share must be adopted by June 30, 2025. Failure to adopt a fair share plan and housing element will result in the loss of immunity from builder’s remedy suits. Interested parties may challenge the municipal fair share plan and housing element by submitting a challenge before August 31, 2025 to the program. The program would review the challenge and allow the municipality to revise its fair share plan and housing element by November 30, 2025, or provide the municipality with the opportunity to submit an explanation for not making such changes. Lastly, the bill requires municipalities to adopt all changes to municipal ordinances by January 31, 2026. Again, if the municipality fails to meet the deadline, absent an extension provided by the program, the municipality will lose its immunity from builder’s remedy lawsuits. Once again, it will be extraordinarily problematic to meet these deadlines given prior experience in the third round.
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