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Bi-County Development Corp. v. Mayor and Council of Borough of Oakland

Decided: February 29, 1988.


Skillman, J.s.c.


This is a Mount Laurel case. See So. Burlington Cty. N.A.A.C.P. v. Mount Laurel Tp., 92 N.J. 158 (1983). On June 30, 1987, a scheduling order was entered which directed defendant, Borough of Oakland, to notify this court whether it intended to file a fair share housing plan with the Council on Affordable Housing (council) and move for a transfer to the council. The order further provided that in the event Oakland determined not to proceed before the council, it should advise the court

whether defendants will dispute the Council's fair share determination for the Borough and, if so, giving a brief outline as to the fair share issue as perceived by defendants including particular aspects of the Council's methodology or numbers generated which are in dispute, being as detailed as the defendants are then able; and, further, if not, stating whether defendants claim full or partial compliance, identifying any zoning which purportedly achieves such compliance.

In response to this order, counsel for Oakland advised the court that it intended to litigate the matter rather than moving for a transfer to the council and that it would accept the council's fair share methodology, "with the exception of the provisions of the reallocated housing formula utilized by the Council on Affordable Housing for region 1 as it applies to Oakland's fair

share obligation." The parties subsequently agreed by consent order entered on December 30, 1987 to submit the issue of Oakland's fair share obligation for determination on the basis of the reports, resumes and depositions of their respective experts. These documents comprise the entire record before the court.

Pursuant to the Fair Housing Act, N.J.S.A. 52:27D-301 et seq., the council has adopted regulations which prescribe the method for calculating a municipality's fair share obligation. See N.J.A.C. 5:92-2.1 to -8.6. On May 21, 1986 the council issued a document entitled "Municipal Present, Prospective and Pre-Credited Need," which indicates the fair share obligation of each municipality in the State under the methodology set forth in the council's regulations. According to this document, Oakland's fair share obligation is 345 units of low and moderate income housing.

Plaintiff's experts urge this court to follow the fair share methodology adopted by the council, without modification. Oakland's expert, Malcolm Kasler, also urges this court to follow the council's fair share methodology, but with one major modification. Kasler urges that the part of Oakland's fair share consisting of reallocated present need should be phased in over three six-year periods. He contends that a requirement that the entire reallocated present need be satisfied over the next six years would impose an excessive obligation on Oakland and other municipalities in Bergen County.

I conclude that trial courts hearing Mount Laurel cases which have not been transferred to the council should follow the council's fair share methodology, unless that methodology is shown to be arbitrary or capricious. When the Legislature enacted the Fair Housing Act, it envisioned that the council, rather than the courts, would assume primary responsibility for enforcement of the Mount Laurel obligations of New Jersey municipalities. N.J.S.A. 52:27D-302(c) declares that the interests of all citizens "would be best served by a comprehensive

planning and implementation response to" the Mount Laurel obligation. N.J.S.A. 52:27D-302(d) declares that the "essential ingredients" of such a "comprehensive planning and implementation response" include "the establishment of reasonable fair share housing guidelines and standards." Accordingly, the council has been assigned the responsibility to "[e]stimate the present and prospective need for low and moderate income housing at the State and regional levels," N.J.S.A. 52:27D-307(b), and to "[a]dopt criteria and guidelines for . . . [m]unicipal determination of its present and prospective fair share of the housing need in a given region," N.J.S.A. 52:27D-307(c)(1). The act also contains a variety of inducements for municipalities to submit fair share plans in accordance with the council's criteria and guidelines. See, e.g., N.J.S.A. 52:27D-312, -317, -320, -321.

In Hills Development Co. v. Bernards Tp., 103 N.J. 1 (1986), the Supreme Court described the primary responsibility of the council in determining the extent of municipal fair share obligations as follows:

The Court also made it clear that the trial courts should conform, wherever possible, with the ...

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