Municipal Affordable Housing Obligations Are Now Determined by the Courts

By: Kevin J. Moore, Esq.

In its unanimous decision on March 10, 2015, in In Re Adoption of N.J.A.C. 5:96 & 5:97 by N.J. Council on Affordable Housing (M-392-14 (067126), the New Jersey Supreme Court held that the courts, and not the Council on Affordable Housing ("COAH"), will determine if municipalities have met their constitutional affordable housing obligations under the Mount Laurel doctrine. However, builders' remedy lawsuits will not be immediately available to property owners in municipalities that either have substantive certification under COAH's invalidated Third Round Rules or were participating in the COAH process to obtain it. Further, the Court created a process by which these municipalities can obtain the equivalent of substantive certification from the courts and thus immunity from builders' remedy lawsuits.