On Oct. 8, the Appellate Division overturned the latest iteration of regulations of the New Jersey Council on Affordable Housing (COAH) in In Re Adoption of N.J.A.C. 5:96 and 5:97 , 2010 WL 4027722 (App. Div., October 8, 2010). This article will discuss the ramifications of this notable decision and suggest strategies to guide future efforts in this contentious field.

In 1985, and in response to the Supreme Court’s 1983 Mount Laurel II decision, 92 N.J. 158 (1983), the Legislature enacted the Fair Housing Act (FHA). The FHA created COAH and empowered it to devise and implement an administrative system, as an alternative to the courts, to allow municipalities to meet their constitutional obligations to provide a realistic opportunity for their fair share of affordable housing. Among its many duties, COAH was obliged to formulate periodically affordable housing obligations. COAH’s first-round formulation covered 1987 through 1993. COAH’s second-round formulation covered 1987 through 1999. In 2004, five years later, COAH adopted its initial set of third-round regulations. Those regulations were overturned by the Appellate Division in January 2007 in In re Adoption of N.J.A.C. 5:94 and 5:95 , 390 N.J. Super. 1 (App. Div. 2007). Noting that “time was critical,” the court gave COAH six months to adopt new regulations.

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