Affordable Housing And The Mount Laurel Doctrine In New Jersey: Solving The Geometry Of Chaos

In the November issue of In the Zone, we published an article discussing the failure of the Council on Affordable Housing (COAH) to adopt the third iteration of the Third Round Rules. That article referenced the Supreme Court's Order of March 14, 2014 (March 14th Order), which expressly directed that COAH adopt the proposed rules before October 22, 2014, for publication in the New Jersey Register for the November 17 edition – or else. Because the Third Round Rules were neither adopted nor published as the court explicitly ordered, presently there are no administrative rules governing COAH, nor quantifying municipal affordable housing obligations.

In light of where we now find ourselves in this unending, unproductive and counterclockwise loop of executive-legislative-judicial paralysis on the issue, one cannot help but pause and reflect on observations made some 18 years ago by Harvard University Louis D. Brandeis Professor of Law, Charles M. Haar, in his 1996 book, Suburbs Under Siege: Race, Space and Audacious Judges. In his analysis of the social and political forces in play that ultimately yielded the New Jersey Supreme Court's seminal Mount Laurel I decision in 1975 and its follow-on 1983 decision fashioning the "builders remedy" in Mount Laurel II, Professor Haar made what can very well be characterized as prescient observations and, perhaps, timely guidance in one of his concluding chapters. In "Chapter XI: The Last Recourse: Why Judges Intervene," he wrote, in pertinent part:

The Mount Laurel litigations bring to the fore the residual role of the courts in the checks-and-balances system of a constitutional democracy. Local governments, ordinarily endowed with total discretion in the exercise of zoning powers, are found to be seriously and chronically in constitutional default. In such a state of affairs, whatever a court's adherence to the separation of powers as usually enunciated or whatever the loyalty to the conventional divisions of powers among the levels of government as typically argued, the strict rules of judicial insulation become inapposite.

Reordering of Government Behavior

To modify a phrase from the philosopher David Hume, it is both appropriate and necessary for the court to fashion judicial remedies to remove local exclusionary regulatory ordinances. By appropriate, I mean that the court is neither overstepping its authority nor improperly impinging on the prerogatives of the other two branches of government. By...