Historic Background


In 1975 the New Jersey Supreme Court determined, in So. Burlington Cty. NAACP v. Borough of Mount Laurel (Mount Laurel I) that every developing municipality in New Jersey had an affirmative obligation to provide for its fair share of State-Mandated Affordable Housing. In a subsequent decision in 1983 (Mount Laurel II), the Court acknowledged that the vast majority of municipalities had ignored this constitutional obligation. The Court in that decision refined this obligation to focus primarily on those municipalities that had portions of their boundaries within the growth area as delineated in a document that was the precursor to the State Development and Redevelopment Plan. The Court also called for the state legislature to enact legislation that would save municipalities from the burden of having the courts determine their State-Mandated affordable housing needs. The result of this decision was the adoption of the Fair Housing Act in 1985 as well as the creation of the New Jersey Council on Affordable Housing (COAH), which became the state agency responsible for overseeing the manner in which New Jersey’s municipalities address their low and moderate income housing needs.

COAH proceeded to adopt regulations for the First Round obligation, which covered the years 1987 to 1993. It also established Second Round housing-need numbers that cumulatively covered the years 1987 through 1999. Under both the First and Second Rounds, COAH utilized what is commonly referred to as the “fair share” methodology.

COAH utilized a different methodology, known as “growth share,” beginning with its efforts to prepare Third Round housing-need numbers. The Third Round substantive and procedural rules were first adopted in 2004. These regulations were challenged and in January 2007, the Appellate Division invalidated various aspects of them and remanded considerable portions of the rules to COAH with the directive to adopt revised rules.

In May 2008, COAH adopted revised Third Round regulations which were published and became effective on June 2, 2008. Coincident to this adoption, COAH proposed amendments to the rules they had just adopted, which subsequently went into effect in October 2008.

The rules and regulations adopted in 2008 were subsequently challenged, and in an October 2010 decision the Appellate Division invalidated the Growth Share methodology, and also indicated that COAH should adopt regulations pursuant to the Fair Share methodology utilized in Rounds One and Two. The Supreme Court affirmed this decision in September 2013, invalidating the third iteration of the Third Round regulations and sustaining the invalidation of growth share, and directing COAH to adopt new regulations pursuant to the methodology utilized in Rounds One and Two.

In October 2014 COAH failed to adopt their newly revised Third Round regulations, deadlocking with a 3-3 vote. The Fair Share Housing Center, who was a party in both the 2010 and 2013 cases, responded by filing a motion in aid of litigants’ rights with the New Jersey Supreme Court. The Court heard the motion in January 2015. On March 20, 2015, the Court ruled that COAH was effectively dysfunctional, and consequently returned jurisdiction of State-Mandated Affordable Housing issues back to the trial courts where it had originally been prior to the creation of COAH in 1986.

The Court decision had established a process which allowed municipalities to file a declaratory judgment action seeking to declare their HEFSPs constitutionally compliant or receive temporary immunity from affordable housing builders remedy lawsuits while they prepare a new or revised HEFSP to ensure their plan continues to affirmatively address their local housing need, as may be adjusted by new housing-need numbers promulgated by the Court. 

Township's Responses to its State-Mandated Affordable Housing Obligation

In light of these decisions, the Township of Millburn and its Planner prepared a Housing Element and Fair Share Plan dated April, 2018. After a public hearing on the HEFSP on April 18, 2018, the Planning Board adopted a Resolution adopting the Housing Element and Fair Share Plan as a component of the Master Plan of the Township of Millburn. On April 19, 2018, the Millburn Township Committee adopted a Resolution endorsing the HEFSP and authorized the filing of a Declaratory Judgement Action in the Superior Court and a Motion seeking Temporary Immunity from Third Party Lawsuits (also referred to as Builder Remedy Lawsuits). The Township obtained temporary immunity and since then has been  actively negotiating with the Fair Share Housing Center and has received multiple extensions of immunity to continue in good faith negotiations. Recently the Courts had informed the Township that they must come upon an agreed settlement with the Fair Share Housing Center and two interested parties (Woodmont Properties & 297 Millburn Avenue) within the given timeframe of July 15-31, 2021.

Millburn Township is nearing a settlement agreement on State-Mandated Affordable Housing. Please click here to view our press release for additional details.