Several municipalities brought declaratory judgment actions seeking determination of their fair share of affordable housing obligation under Fair Housing Act (FHA). Actions were consolidated.
The Superior Court, Law Division, entered order directing Special Regional Master to include as part of fair share calculation a separate component for municipalities’ fair share obligation during gap period for which Council on Affordable Housing (COAH) had failed to adopt rules governing determination of housing obligation. Municipalities sought interlocutory review.
The Superior Court, Appellate Division, held that:
- Separate component was improper, and
- Doctrine of judicial estoppel did not preclude such holding.
Separate, retroactive obligation for municipalities’ fair share of affordable housing during gap period for which Council on Affordable Housing (COAH) had failed to adopt rules governing determination of housing obligation was not an appropriate component of municipalities’ housing obligation for third-round cycle under Fair Housing Act (FHA). Text of FHA demonstrated legislature’s concern with present and prospective fair share housing, low and moderate income households formed during gap period needing affordable housing could be captured in calculation of municipalities’ fair share without resort to retroactive obligation component, and imposition of new obligation was best left to executive and legislative branches.
Doctrine of judicial estoppel did not preclude Appellate Division’s holding that separate, retroactive obligation for municipalities’ fair share of affordable housing during gap period for which Council on Affordable Housing (COAH) had failed to adopt rules governing determination of housing obligation was not an appropriate component of housing obligation for third-round cycle under Fair Housing Act (FHA). Appellate Division had not previously been asked to address, and had not sanctioned, a gap-period affordable housing obligation in prior action, and none of the parties in instant action participated in prior action.