West Orange Fourth Round HEFSP_adopted 111025_Appendices

KMA KYLE MCMANUS ASSOCIATES 3.0 CONTEXT FOR REVIEW This report reviews West Orange’s adopted 2020 Housing Element and Fair Share Plan against the Township’s April 17, 2020 Settlement Agreement with FSHC, the accompanying Order on Fairness dated August 3, 2020, as well as the applicable rules of the Council on Affordable Housing (hereinafter “COAH") (NJ.A.C, 5:93), the Fair Housing Act (N.J.S.A, 52:27D-301 et seq), and relevant case law. In doing so, this report relies upon the second round regulations of COAH (N.J.A.C. 5:93) to the greatest extent practicable, the Uniform Housing Affordability Control Rules, N.J.A.C, 5:80-26,1 et seq., the Fair Housing Act (NJS.A. 52:27D-301 et seq), and relevant case law. This approach encourages uniformity in the interpretation of the Mount Laurel doctrine and is consistent with both legislative and judicial directives. The Fair Housing Act (P.L. 1985, c. 222) states, “The interest of all citizens, including low and moderate income families in need of affordable housing, would be best served by a comprehensive planning and implementation response to this constitutional obligation.” (W.J.5.4, 52:27D-302(c)) Furthermore, the New Jersey Supreme Court, in its decision in The Hills Development Co. v. Town of Bernards, 103 NJ 1 (1986) {commonly known as Mount Laurel I!I) upheld the constitutionality of the Fair Housing Act, and stated, “Instead of varying and potentially inconsistent definitions of total need, regions, regional need, and fair share that can result from the case-by-case determinations of courts involved in isolated litigation, an overall plan for the entire state is envisioned, with definitions and standards that will have the kind of consistency that can result only when full responsibility and power are given to a single entity [COAH].” (103 N.J. at 25) Lastly, in the decision, the Supreme Court also stated that to the extent that Mount Laurel cases remained before the courts, “any such proceedings before a court should conform wherever possible to the decisions, criteria and guidelines of the Council.” (103 N.J. at 63) On March 10, 2015, the N.J. Supreme Court delivered In the Matter of the Adoption of N.JA.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015) (hereinafter “Mount Laurel IV"). This decision acknowledged COAH’s inability or unwillingness to adopt

ption of N.JA.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing, 221 N.J. 1 (2015) (hereinafter “Mount Laurel IV"). This decision acknowledged COAH’s inability or unwillingness to adopt constitutional rules for the so- called “Third Round” of municipal affordable housing compliance. In the absence of regulatory guidance from COAH or Legislative action, the decision instructs the Trial Courts to once again evaluate the constitutionality of municipal Fair Share Plans. While the Court has invalidated COAH’s attempts to promulgate Third Round rules, the Second Round rules (N.J.A.C. 5:93) are still largely intact. In fact, these rules have been relied upon by the Trial Courts in numerous compliance and fairness hearings during the “gaps” in COAH’s rule-making since the Second Round ended in 1999. Furthermore, in the Mount Laurel IV decision the NJ Supreme Court directed the Township of West Orange | Docket No.: ESX-t-4697-15 February 15, 2021 Compliance Heoring Page 2