Land use lawyers should pay close attention to an impending decision by the New Jersey Supreme Court that will radically impact their practice if the court rules as Fair Share Housing Center (FSHC), the New Jersey Builder’s Association (NJBA) and others advocate (hereinafter collectively “FSHC”). Indeed, the decision these litigants advocate would commandeer the use of the power to zone to advance affordable housing over all other legitimate uses of that power. Such a result would destroy the balance the Supreme Court itself said it sought to achieve between zoning for affordable housing and for other worthy purposes. See So. Burlington County N.A.A.C.P. v. Tp. of Mount Laurel, 92 N.J. 158, 214, 219-220 (1983) (“Mount Laurel II“). Perhaps more importantly, the standard these litigants seek would violate not only the plain language of the New Jersey Fair Housing Act, N.J.S.A. 52:27D-301 et seq. (FHA), but also the Legislature’s clear goal of providing relief from the enormous fair share burdens generated by the formula set forth in AMG Realty Co. v. Warren Tp., 207 N.J. Super. 388 (Law Div. 1984). N.J.S.A. 52:27D-302 (d).
The ruling FSHC seeks arises from their challenge to the Appellate Division’s decision in a case entitled In re Declaratory Judgment Actions Filed by Various Municipalities, Cty. of Ocean, 446 N.J. Super. 259 (App. Div. 2016), appeal granted, stay granted sub nom. In re Declaratory Judgment Actions, No. 077565 (N.J. Sept. 8, 2016) (“the Gap Decision”). In the Gap Decision, the Appellate Division refused to rewrite the FHA to expand the constitutional obligation beyond the limits the Legislature established. Basing its ruling on fundamental principles of statutory interpretation, and consistent with Supreme Court precedent, the Appellate Division held that the FHA authorized the imposition of an obligation for the Present and Prospective Need only—not an additional retrospective obligation. Id. at 267.
