King Moench & Collins LLP partner Michael L. Collins argued before the Appellate Division this week on behalf of 28 New Jersey municipalities and Montvale Mayor Michael Ghassali in their challenge to the State’s interim “fourth round” affordable housing regulations issued without any notice or comment. An article covering the oral argument was recently published in Law360.
The appeal challenges emergency rules adopted by the New Jersey Housing and Mortgage Finance Agency (“HMFA”) without the public notice and comment under the Administrative Procedure Act (APA). Those rules dictate how municipalities must plan and zone to satisfy their next decade of affordable housing obligations under the Fair Housing Act. Collins argued that the HMFA’s rulemaking process bypassed statutory and constitutional safeguards, forcing municipalities to submit housing plans under regulations they never had a chance to review.
“These rules govern municipal actions for the next 10 years,” Collins told the three-judge panel. “They were adopted without any opportunity for stakeholders to have notice or comment. That violates the statute and the constitution.”
Collins emphasized that the State’s procedural shortcuts had already caused significant disruption at the local level. Dozens of towns filed housing element and fair share plans by a June 30 deadline based on the emergency rules — plans that may soon be inconsistent with the permanent regulations now undergoing public comment.
“There’s going to be changes between the emergency rules and the finally adopted rules,” Collins said. “It’s going to create chaos because municipalities have already acted, and there’s no guidance on how they can revise their plans.”
Pressed by the panel about whether the case could become moot once final rules are adopted, Collins urged the court to preserve municipal rights by granting equitable relief that would allow local governments to revise their submissions once the State issues its new regulations.
“The municipalities deserve an opportunity to amend their submissions,” Collins told the court. “Without judicial relief, they’re bound by rules we all know are going to change.”
Collins further led argument on a related interlocutory appeal, challenging the trial court’s refusal to permit the municipalities to amend their complaint to include constitutional claims.
“The trial court didn’t apply the liberal standard for leave to amend,” Collins said, emphasizing the municipalities’ right to have those issues heard on the merits.
The appeals are currently pending decision by the Appellate Division.
King Moench & Collins LLP represents New Jersey municipalities in complex land use, affordable housing, and constitutional litigation. For additional updates, visit www.kingmoench.com.