Challengers to Housing Elements and Fair Share Plans Get a Second Bite at the Apple

The Mt. Laurel judges in the Mercer and Middlesex County Vicinages have ordered Fairness Hearings before they will approve any challenged Housing Elements and Fair Share Plans (HEFSPs) in their counties. It is likely that the Mt. Laurel judges in the state’s other vicinages will also require such hearings. At these Fairness Hearings, challengers to HEFSPs will have the right to present legal arguments and witnesses in support of their challenges and the municipalities will have the right to respond with their own legal arguments and witnesses. The Judges will also determine whether to approve the municipalities’ implementing ordinances at these Fairness Hearings.

The Amended Fair Housing Act and Administrative Directive No. 14-24 implementing it do not contemplate such a process. Now, challengers will have the chance to renew their arguments and make new ones, notwithstanding the fact that the Dispute Resolution Program and the Mt. Laurel judges have already dismissed these challenges. The genesis of this new procedure appears to be the determination of the Appellate Division that challengers’ appeals of the dismissal of their challenges were premature because the Mt. Laurel courts had not yet approved the municipal implementing ordinances. This is notwithstanding the fact that the Mt. Laurel courts have already dismissed these challenges. Unfortunately, this new process creates the possibility of significant delays in the development of affordable housing in the State.

For more information, contact Kevin Moore at kevin.moore@stevenslee.com or 609.243.6420.