• 01/19/2017

    Supreme Court Releases Opinion on "Gap Year" Fair Share Issues

    News Release

    Princeton, N.J. --- On January 18, 2017, the New Jersey Supreme Court released its opinion in the “gap year” appeal. Hill Wallack LLP, through partners Thomas F. Carroll, III, and Stephen Eisdorfer, represented the New Jersey Builders Association in the appeal. 

    The gap years, the years 1999-2015, are the years in which the Council on Affordable Housing (COAH) failed to adopt lawful regulations and fair share numbers.  The opinion holds that fair share need numbers must be calculated for the gap years.  Thus, municipalities will face higher fair share obligations, and they must adopt fair share plans accordingly, rezoning more properties for affordable housing.

    Municipalities had argued that the gap year need should simply be ignored.  The Court rejected that position, and then addressed the question of how the gap year need should be calculated.  The opinion directs that trial courts calculate gap year need as an expanded version of “present need,” as opposed to including gap year need within the category of “prospective need.” 

    The Supreme Court’s opinion goes a long way toward eliminating uncertainty as to municipalities’ fair share obligations under the Mount Laurel doctrine.  Trial courts throughout the State are now guided by the Supreme Court’s opinion.  There is an ongoing fair share methodology trial involving Mercer County Mount Laurel cases, and that is likely to be the first case in which the Supreme Court’s opinion is applied.  The Court’s opinion should also assist in bringing about speedier settlements of Mount Laurel cases.

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    About the Author: The author, partner-in-charge of the Land Use Division of Hill Wallack LLP, and Land Use Counsel to the NJBA, argued the Supreme Court appeal on behalf of the NJBA.