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Decision Provides Roadmap to Municipalities, Requires Fair Share Plans in 5 Months

Posted by Kevin Walsh on July 9th 2015

A decision issued today by Superior Court Judge Douglas K. Wolfson clarified what municipalities must do to avoid builder’s remedy lawsuits and when municipalities are required to file plans showing how they meet their housing obligations. The decision provides a roadmap for municipalities that are willing to comply with the law while making clear that municipalities that intend to delay and to avoid their obligations will be held accountable and may have their home rule powers removed.

The decision builds on the Supreme Court’s March 10, 2015 decision finding that municipalities can no longer rely on the Council on Affordable Housing (COAH) to evaluate whether the municipalities are complying with the Mount Laurel doctrine. The Supreme Court directed municipalities to appear in trial courts throughout the state starting on June 8, 2015 to show how they will provide their fair share of their region’s need for homes affordable to lower-income families, people with disabilities, and seniors on fixed incomes.

Today’s decision, which involves Monroe Township in Middlesex County, holds that to be protected from builder’s remedy litigation a municipality must show it made “a good faith attempt to satisfy its affordable housing obligations, and hence, deserves immunity from exclusionary zoning actions.” The court ruled the immunity from builder’s remedy litigation comes with the “condition” that the municipality “prepares and files its housing element and fair share plan within five months.”

In the case of Monroe Township, the trial court has required the municipality to file a fair share plan by November 9, 2015. The decision holds that the five-month period of protection “commenc[es] with the filing of the complaint by Monroe Township in this matter,” meaning that, according to a court order entered by Judge Wolfson, the protection will expire in early-November 2015 if the municipality does not satisfy its obligations by then.

Fair Share Housing Center and a developer have been permitted to intervene in the lawsuit to participate on the issue of whether the municipality has complied with Mount Laurel. The court ruled that “it is amply clear that the [Supreme] Court specifically contemplated, and in the case of FSHC, for example, directly encouraged, interested parties to weigh in on the extent and methods by which a given municipality proposed to fulfill its affordable housing obligations.”

The decision comes at an important time given yesterday’s deadline for filing for protection from developers pursuing builder’s remedies. Hundreds of municipalities have filed with trial courts and claimed they are entitled to protection from builder’s remedy lawsuits. Many of those municipalities though have a poor track record and are resisting the Supreme Court’s five month deadline. The decision today makes clear that municipalities must earn protection from builder’s remedy lawsuits and that such protection is not automatic. Municipalities that have a poor track record and have wasted the past four months should be very concerned. The decision also makes clear that the five month clock is running.

All of this means that we can expect a lot to happen over the next five months. Municipalities that are responsible and proceed in good faith have nothing to worry about. Municipalities that have done little and propose further delay, perhaps because the mayor wants to exclude lower-income folks or because of bad legal advice, face the risk of builder’s remedy litigation.

We will keep you updated as we learn more about how judges are responding to the Supreme Court’s March 10, 2015 decision.

Judge Wolfson’s decision is available here.