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Cite As: 215 NJ 578, 74 A.3D 74 A.3d 893 Page 1 215 N.J. 578, 74 A.3d 893 (Cite as: 215 N.J. 578, 74 A.3d 893) See also 390 N.J.Super. 1, 914 A.2d 348. Supreme Court of New Jersey. In the Matter of the ADOPTION OF N.J.A.C. 5:96 West Headnotes and 5:97 by the New Jersey Council on Affordable Housing. [1] Zoning and Planning 414 1107 Argued Nov. 14, 2012. 414 Zoning and Planning Decided Sept. 26, 2013. 414II Validity of Zoning Regulations 414II(B) Particular Matters Background: Builders' association and affordable 414k1107 k. Public and low-income hous- housing advocacy organizations, among others, ap- ing. Most Cited Cases pealed from Council on Affordable Housing's (CO- AH) adoption of revised third-round substantive rules When exercising their power to zone, municipal- for calculation of affordable housing needs and crite- ities across the state, not just developing municipali- ria for satisfaction of needs, for purposes of munici- ties, are required to account for the housing needs of palities' duty under Mount Laurel doctrine to provide individuals residing outside of their municipalities, for a realistic opportunity for fair share of region's but within the region that contributes to the housing needs for affordable housing. The Superior Court, demand in their municipalities. Appellate Division, Skillman, P.J.A.D., 416 N.J.Super. 462, 6 A.3d 445, affirmed in part, reversed [2] Zoning and Planning 414 1107 in part, and remanded. COAH petitioned, and mu- nicipalities cross-petitioned for review, which was granted. 414 Zoning and Planning 414II Validity of Zoning Regulations 414II(B) Particular Matters Holdings: The Supreme Court, LaVecchia, J., held 414k1107 k. Public and low-income hous- that: ing. Most Cited Cases (1) constitutional obligation for municipalities to af- ford a realistic opportunity for the construction of their fair share of the present and prospective regional need The Mount Laurel doctrine, under which munic- for low and moderate income housing was distinct ipalities have a constitutional obligation to afford a from the judicial remedy that was embraced by the realistic opportunity for the construction of their fair Supreme Court, and share of the present and prospective regional need for (2) COAH regulations were not severable. low and moderate income housing, is a corollary of the constitutional obligation to zone only in further- ance of the general welfare. N.J.S.A. Const. Art. 1, § Affirmed as modified. 1. Hoens, J., dissented and filed opinion in which [3] Zoning and Planning 414 1107 Patterson, J., joined. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 74 A.3d 893 Page 2 215 N.J. 578, 74 A.3d 893 (Cite as: 215 N.J. 578, 74 A.3d 893) was identified in Mount Laurel I, and refined and 414 Zoning and Planning made applicable to all municipalities in Mount Laurel 414II Validity of Zoning Regulations II, was distinct from the judicial remedy that was 414II(B) Particular Matters embraced by the Supreme Court in which it created a 414k1107 k. Public and low-income hous- special litigation track for exclusionary zoning cases, ing. Most Cited Cases enumerated certain affirmative measures that would define the tools at a municipality's disposal, and sanctioned a builder's remedy, which permitted A growth share approach for determining a mu- builder-plaintiffs to sue for the opportunity to con- nicipality's affordable housing obligation, which ties a struct housing at higher densities than a municipality municipality's affordable housing obligation to its otherwise would allow, and, thus, the judicial remedy own actual rate of growth, is the central criterion for should not have been viewed as the only one that determining a municipality's future fair share consti- could presently secure satisfaction of the constitu- tutional obligation for municipalities to afford a real- tional obligation to curb exclusionary zoning and istic opportunity for the construction of their fair share promote the development of affordable housing in the of the present and prospective regional need for low housing regions of New Jersey. N.J.S.A. Const. Art. 1, and moderate income housing, which was identified in § 1. Mount Laurel I, and refined and made applicable to all municipalities in Mount Laurel II. N.J.S.A. Const. Art. 1, § 1. [5] Zoning and Planning 414 1267 [4] Zoning and Planning 414 1267 414 Zoning and Planning 414V Construction, Operation, and Effect 414V(C) Uses and Use Districts 414 Zoning and Planning 414V(C)1 In General 414V Construction, Operation, and Effect 414k1267 k. Public and low-income 414V(C) Uses and Use Districts housing. Most Cited Cases 414V(C)1 In General 414k1267 k. Public and low-income housing. Most Cited Cases Development of low and moderate income housing merely for development's sake is not the constitutional goal of obligation for municipalities to Zoning and Planning 414 1721 afford a realistic opportunity for the construction of their fair share of the present and prospective regional 414 Zoning and Planning need for low and moderate income housing, which 414X Judicial Review or Relief was identified in Mount Laurel I, and refined and 414X(D) Determination made applicable to all municipalities in Mount Laurel 414k1714 Affirmative Relief from Court II. N.J.S.A. Const. Art. 1, § 1. 414k1721 k. Public and low-income housing; builders' remedies. Most Cited Cases [6] Zoning and Planning 414 1033 The constitutional obligation for municipalities to 414 Zoning and Planning afford a realistic opportunity for the construction of 414I In General their fair share of the present and prospective regional 414k1019 Concurrent or Conflicting Regula- need for low and moderate income housing, which © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 74 A.3d 893 Page 3 215 N.J. 578, 74 A.3d 893 (Cite as: 215 N.J. 578, 74 A.3d 893) tions; Preemption 414II Validity of Zoning Regulations 414k1033 k. Other particular cases. Most 414II(A) In General Cited Cases 414k1061 Effect of Partial Invalidity; Sev- erability Fair Housing Act (FHA) sets forth the framework 414k1063 k. Particular regulations. of a remedy that precluded Council on Affordable Most Cited Cases Housing's (COAH) from taking the liberty to fashion a new growth share methodology that 1) allowed for the The growth share pillar to obligations imposed by devising of residential and commercial affordable Council on Affordable Housing's (COAH) on mu- housing ratios for projected need that were not tied to nicipalities to afford a realistic opportunity for the a regional need for affordable housing, and 2) left construction of municipalities' fair share of the present open-ended how or whether projected need for a and prospective regional need for low and moderate housing region would be fulfilled. N.J.S.A. income housing, which was identified in Mount Lau- 52:27D–307. rel I, and refined and made applicable to all munici- palities in Mount Laurel II, was not severable, not- [7] Zoning and Planning 414 1033 withstanding the severability clause contained in the regulations; growth share methodology's intertwine- ment with the entire regulatory program was insepa- 414 Zoning and Planning rable from the new regulatory scheme fashioned by 414I In General COAH and how the regulations could have been sat- 414k1019 Concurrent or Conflicting Regula- isfied because it was so pervasively woven into the tions; Preemption entire regulatory program that it could not have been 414k1033 k. Other particular cases. Most surgically removed. Cited Cases **894 Edward J. Buzak, Montville, argued the cause Council on Affordable Housing (COAH) could for appellant and cross-respondent New Jersey State not properly implement new growth share methodol- League of Municipalities (The Buzak Law Group, ogy that ignored or rewrote policy adopted by the attorneys). legislature in the Fair Housing Act (FHA) with regard to municipalities' obligation to afford a realistic op- portunity for the construction of their fair share of the Jonathan E. Drill argued the cause for appellants and present and prospective regional need for low and cross-respondents Clinton Township, Bedminster moderate income housing, which was identified in Township, Bernards Township, Bethlehem Township, Mount Laurel I, and refined and made applicable to all Town of Clinton, Greenwich Township, **895 municipalities in Mount Laurel II; FHA tracked Montgomery Township, Peapack–Gladstone Bor- Mount Laurel II allocation methodology for satisfac- ough, Readington Township, Roseland Borough, tion of present and prospective need based on housing Union Township and Marvin J. Joss (Stickel, Koenig region, and COAH was not free to abandon that re- & Sullivan, attorneys; Stuart R. Koenig, Cedar Grove, medial approach. N.J.S.A. 52:27D–302 et seq. on the briefs). [8] Zoning and Planning 414 1063 Kevin D. Walsh, Cherry Hill, argued the cause for appellant and cross-respondent Fair Share Housing Center (Mr. Walsh, attorney; Mr. Walsh and Adam M. 414 Zoning and Planning © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. 74 A.3d 893 Page 4 215 N.J. 578, 74 A.3d 893 (Cite as: 215 N.J. 578, 74 A.3d 893) Gordon, on the briefs). Housing & Community Development Network of New Jersey (Lowenstein Sandler, attorneys; Mr. Stephen M. Eisdorfer argued the cause for respondent Zimmerman, Ms. Weiss, Michael J. Hahn, Michael New Jersey Builders Association (Hill Wallack, at- T.G. Long, and Ryan J. Cooper, Roseland, on the torneys; Mr. Eisdorfer and Thomas F. Carroll, III, brief). Princeton, on the brief). Lawrence S. Lustberg submitted a brief on behalf of Geraldine Callahan, Deputy Attorney General, argued amici curiae New Jersey State Conference of the Na- the cause for respondent New Jersey Council on Af- tional Association for the Advancement of Colored fordable Housing and Commissioner of the Depart- People and Latino Action Network (Gibbons P.C., ment of Community Affairs (Jeffrey S.
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