VOL. CLXXVI – NO.
12 – INDEX 1156
Mount Laurel : End Game?
Absent judicial action, the
proposed COAH regulations
will eviscerate the Mount
Laurel Doctrine
By Carl S. Bisgaier and
Tracy A. Siebold
he New Jersey Constitution impos-
T es an affirmative duty upon munic-
ipalities to create a realistic, fair
share opportunity for the construction
of housing affordable to low and mod-
erate income households. Southern
Burlington Cty. N.A.A.C.P. v. Tp. of
Mount Laurel, 92 N.J. 158 (1983)
(Mount Laurel). The implementation of
that mandate during the past 20 years
has resulted in the construction and
rehabilitation of thousands of desperate-
ly needed housing units and fostered an
environment where the needs of the
poor are at the forefront of municipal,
regional, and state planning. Now, it
appears likely that, absent firm judicial
action, the mandate will be eviscerated
by the current administration.
Since the filing of the initial Mount
Laurel complaint in 1971, the goal to
provide affordable housing for New
Bisgaier was the plaintiff’s attorney
who tried and argued the Mount Laurel
cases. Bisgaier is a shareholder and
Siebold is an associate in the real estate
practice group of Flaster/Greenberg in
Cherry Hill.
This article is reprinted with permission from the JUNE 21, 2003 issue of the New Jersey Law Journal. ©2004 ALM Properties, Inc. Further duplication without permission is prohibited. All rights reserved.
JUNE 21, 2004
Real Estate
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Jersey’s poor has met many challenges,
including municipal intransigence, an
extended real estate depression, and leg-
islative efforts to adopt a constitutional
amendment to eradicate the obligation.
Today, the doctrine faces its most with-
ering attack by government officials
who apparently are determined to
destroy it.
We may be experiencing a deliber-
ate and concerted administrative effort
to undermine this doctrine and to test
the mettle of the judiciary. The delays in
implementation of the new COAH reg-
ulations have been unprecedented and
astonishing. However, more shocking
and debilitating is the fact that the
courts may be acquiescing to this
unconstitutional behavior by permitting
it to occur and to continue. This unan-
ticipated judicial indifference is, if true,
unconscionable and, in fact, may
encourage further abuse of the doctrine.
Given the political overtones of
implementing the doctrine and the lack
of power wielded by the doctrine’s ben-
eficiaries, the poor, the administration’s
lack of positive leadership and COAH’s
enervating inactivity were predictable.
It is somewhat ironic that this is hap-
pening in a Democratic administration,
while the mandate flourished under two
Republican administrations.
Regardless, what was not expected and
what could prove to be the death knell
for Mount Laurel is the absence of judi-
cial vigilance, at virtually every level, to
assure its implementation.
Just two years ago the Supreme
Court ruled in Toll Bros., Inc. v. Tp. of
ESTABLISHED 1878
West Windsor, 173 N.J. 502 (2002);
confirming its commitment to the poor
that lengthy, deliberate delays in the
provision of affordable housing would
not be tolerated. Yet, since then, but for
two trial court rulings, both reversed, no
decisions have been rendered even sug-
gesting that the courts are committed to
this end. To the contrary, every decision
addressing the issue since 2002 has
resulted in delay and created an envi-
ronment that has encouraged govern-
ment intransigence. Clearly, the original
commitment of the Supreme Court, that
the judiciary would foster the delivery
of units and not the perpetuation of hol-
low promises and paper studies, is not
being fulfilled.
Any individual who has worked on
land use issues and the provision of
affordable housing recognizes and
understands that the implementation of
Mount Laurel is based solely on litiga-
tion and the threat of litigation. That
“threat” was the fundamental leverage
relied upon by the Supreme Court and
the Legislature to insure that municipal-
ities ultimately would comply with the
constitutional obligation. However, the
threat is meaningless if there is no
forum in which it can be exercised or if
it is subject to interminable delay.
Presently, the litigation “threat” is
being turned into a tool for those seek-
ing to undermine the mandate. They
recognize that the judicial process can
be manipulated and abused to delay and
undermine even fundamental constitu-
tional rights. Basically, a government
official, having no personal exposure
and not caring about his or her constitu-
tional oath of office, essentially goes
unchecked. By delaying the implemen-
tation of the mandate, proposing and
2 NEW JERSEY LAW JOURNAL, JUNE 21, 2004 176 N.J.L.J. 1156

adopting woefully inadequate and
unconstitutional regulations, and then
sitting back to allow lengthy litigation
to take its painful course, the pace of the
production of affordable housing can be
brought to a halt — for years — with no
consequences to those who have violat-
ed the law and the Constitution.
Implementation of the Mount
Laurel doctrine requires a system in
which housing need is assessed, and
obligations are allocated to municipali-
ties. Prior to 1999 these tasks were
completed somewhat successfully: first
by the courts in 1984, and then, twice,
by COAH in 1986 and 1994. Now,
despite the expiration of the last hous-
ing allocation period in 1999, no com-
pliant plan has been proposed, and no
allocation has been assessed. While
market rate housing experiences an
unprecedented boom, municipalities
have failed to require the inclusionary
production of affordable housing, and
the courts have done nothing to address
that failure.
Under the Fair Housing Act of
1985, N.J.S.A. 52:27D-301 et seq.,
COAH is charged with the responsibili-
ty of determining municipal housing
needs through the adoption of a uniform
methodology. The regulations and
statutory guidelines envisioned that, in
due course, but not later than 1999,
COAH would issue “Third Cycle”
municipal allocations for a period of 10
years. Four years later, in October 2003,
COAH published draft regulations for
the Third Cycle fair share period. This
Draft Plan was completed only in the
face of interminable judicial challenges
that finally were scheduled to be heard
(despite repeated, failed efforts to seek
judicial acceleration of the administra-
tive process). After five years in the
making (during which the administra-
tion reportedly rejected several plans
because the “numbers” were too high),
draft rules were issued that are patently
unconstitutional and illegal. Indeed, a
prior Supreme Court justice, several
Mount Laurel court masters and two
former COAH executive directors have
confirmed that the draft regulations are
a massive fraud and sham, designed not
to enable the provision of affordable
housing but to minimize such construc-
tion and to frustrate the goal of achiev-
ing the constitutional mandate. The
unconstitutionality and illegality of the
proposed rules are so prevalent that one
might question the moral integrity of
some of those who participated in their
preparation and release. Once again, the
poor, who must rely only on public offi-
cials to do their constitutional and statu-
tory duty, now must seek justice from
the courts, their only hope for relief.
Based on the recent history of judicial
pronouncements, that hope should be
fading.
A review of the recent actions of
our judiciary leads to no other conclu-
sion. For example, in In re Failure of
New Jersey Council on Affordable
Housing to Adopt Third Round Fair
Share Methodology and to Allocate
Third Round Fair Share Obligations, A-
5304-01T3, the court failed to act (rely-
ing, without basis in the record, on the
release of presumed bona fide draft reg-
ulations). Previously, the court had
failed to accelerate the appeal. Rather
than address the ongoing statewide con-
stitutional violations, the Supreme
Court responded by denying a petition
for certification (indicating that the
application could be renewed if COAH
failed to promulgate formal regulations
by the anniversary date of the draft reg-
ulations—a statutory sunset date).
Similarly, in In the Matter of
Resolutions Approving Readington
Township’s Amendment to Substantive
Certification by the New Jersey Council
on Affordable Housing and Grant of
Extension Pursuant to N.J.A.C. 5:92-
14.3, A-004814-02T3, the Appellate
Division heard a challenge to the grant
of the “extended certifications” by
COAH that allow municipalities to do
nothing until a year after COAH adopts
its Third Cycle regulations. The court
also refused to accelerate hearings on
that case. Once argued, however,
COAH and municipal attorneys, appar-
ently fearing that the court actually
might, at last, do something, reportedly
are considering early adoption of the
illegal and unconstitutional draft regu-
lations in June, in order to “moot” any
decision by the court.
In K. Hovnanian Shore
Acquisitions, LLC v. Tp. of Berkeley, A-
594-01T1 (July 1, 2003) (“Berkeley”),
the Appellate Division upheld a “tem-
porary” immunity order insulating
Berkeley from any builder’s remedy
suits. While the issuance of the order
may have made some sense in 2000 (the
court anticipating the then “imminent”
release of the Third Cycle regulations),
it is hard to imagine how it could be
sustainable four years later absent
adopted regulations and in the face of
the publication of the present defective
draft regulations.
Sod Farm Assocs. v. Tp. of
Springfield, A-3161-02T3, involved a
pending Second Cycle petition for sub-
stantive certification. Despite a fantastic
history of COAH foot-dragging, the
Appellate Division reversed a trial court
ruling, pursuant to N.J.S.A. 52:27D-
319, relieving COAH of jurisdiction.
Remarkably, although the case had
nothing to do with the Third Cycle, the
Supreme Court refused to hear the
appeal based upon the fact that COAH
was working on Third Cycle numbers.
In Toll Bros., Inc. v. Readington
Township, SOM-L-618-04 (formerly
HNT-L-495-02), in what now appears
as virtually a heroic act, the trial court
initially refused to dismiss Third Cycle
claims against COAH and the township,
finding it had jurisdiction to create
interim numbers until COAH adopted
lawful regulations. This ruling was a
major, if singular, victory for the poor.
The court, however, later reversed itself
upon reconsideration, after the
Appellate decisions in Berkeley and Sod
Farm.
Well-housed, well-fed and well-to-
do, white people like to raise cerebral
questions about the proper “role” of the
courts. However, the role of the courts
in the Mount Laurel area already has
been defined. The real issue is not the
inability of the courts to act and to act
well. Clearly, the judiciary has proven
its effectiveness, when it wants to be
effective, in this arena. No, the real
issue is simply whether the courts have
the will to do what, constitutionally,
they have been charged to do. As evi-
denced by pre-COAH court action and
by Toll Bros. and Sod Farms, trial court
judges are willing to enforce and capa-
ble of enforcing Mount Laurel. Prior to
COAH, the courts assessed fair share
obligations and successfully imple-
mented the mandate. AMG Realty Co. v.
176 N.J.L.J. 1156
Tp. of Warren, 207 N.J. Super. 388
(Law Div. 1984). The resolution of this
controversy is not a matter of judicial
propriety but one of judicial determina-
tion to stay the course. That determina-
tion must come from the top down with
a commitment to enforce the
Constitution and laws of this State.
We are celebrating the 50th
anniversary of Brown v. Board of
Education, holding unconstitutional the
“separate but equal” doctrine that toler-
ated separating children solely on the
classification of the color of their skin.
Yet, our housing policies foster a condi-
tion of separate and unequal — some-
thing not even tolerated by the Plessy v.
Ferguson Court. While this may be the
direction errant public officials may try
to take us, our courts must not tolerate
it.
The need for a strong judicial hand
is now more apparent than ever. COAH,
NEW JERSEY LAW JOURNAL, JUNE 21, 2004
inevitably, will adopt blatantly uncon-
stitutional and illegal rules for the Third
Cycle, probably by the time of the pub-
lication of this article. There will be no
major concern in the administration that
litigation will ensue. As there is no per-
sonal exposure, the only thing lost is
time and, clearly, delay is something
that works for the administration and
against the poor. The real fear is an
extended judicial process—of timeless
judicial review leading only to a remand
to COAH to revise the regulations.
Such a course of action would be intol-
erable.
There is a solution. It is essentially
the one devised by the Court in Mount
Laurel to address municipal intransi-
gence. The Supreme Court must accel-
erate the review process by taking
immediate jurisdiction of the challenge
to the new regulations. It should
appoint a knowledgeable trial judge to
3
hear testimony on the new rules and
advise the Court as to their legality and
constitutionality. Most importantly, as
with municipalities, if the new rules are
overturned, the Court should appoint a
master to work with COAH to come up
with new rules which, in the absence of
COAH’s cooperation, should be
imposed by the Court, after review and
approval by a tribunal of selected
judges, as were appointed by the Court
in Mount Laurel. Using the same three,
one of whom has retired, would be an
efficient and highly regarded approach.
Such a ruling would reflect a true com-
mitment to enforcement and is the only
thing likely to achieve the constitution-
al and lawful implementation of the
Mount Laurel mandate. Nothing less
will serve the fundamental rights of
our most needy citizens and the preser-
vation of the integrity of our
Constitution. ■