Even as Gov. Christie has slammed the state Supreme Court as too "activist," his administration's inability to establish new affordable-housing rules has raised the prospect that the high court will intervene next year.
New Jersey has failed for more than a decade to update its requirements to help municipalities satisfy their constitutional obligation to each provide a fair share of the region's affordable housing to low- and moderate-income residents.
After repeated attempts by the Christie administration to fundamentally change that process, the court will hear oral arguments next month in a case brought by affordable-housing advocates, who want the justices to coordinate development of new rules.
"The intriguing question for everyone will be: Is the Supreme Court fed up or not?" said Bruce D. Greenberg, a lawyer with Lite, DePalma, Greenberg L.L.C. who is not involved in the litigation but who has argued before the court.
The case is as much about issues like race and class as it is a potential clash among the three branches of government, and especially between a governor whose powers are considered greater than any other state's chief executive's and a historically progressive court that has thus far thwarted his proposed overhauls.
It also comes as Christie, a Republican considering a run for president in 2016, has tried to move the court to the right.
The need for affordable housing in New Jersey is well-documented. Of the state's 1.1 million renters, more than half spend 30 percent or more of their household income on housing, according to U.S. Census survey data.
Families who spend that high a proportion of income on housing are "cost-burdened and may have difficulty affording necessities such as food, clothing, transportation, and medical care," says the U.S. Department of Housing and Urban Development.
"When you have a tight housing market, people still may find ways to live, but they're not living in ways that are good for them or good for our society," said Kevin Walsh, a lawyer with the Fair Share Housing Center in Cherry Hill, which brought the lawsuit.
There is strong disagreement in the Garden State over how to satisfy the affordable housing demand. Inaction has left developers, towns, and low-income residents in limbo.
The debate dates to the Supreme Court's landmark 1975 Mount Laurel decision, considered a historic win for civil rights. The Burlington County township, undergoing a building boom, had condemned substandard homes and ordered their poor black occupants to vacate to make way for new development.
The court ruled unconstitutional the use of municipal zoning power to prevent construction of affordable housing. The ruling required developing municipalities like Mount Laurel to make housing available to their fair share of lower-income residents.
In a subsequent case, the court took steps to enforce that doctrine and extended it to all municipalities.
In response, the Legislature passed the Fair Housing Act in 1985, which created the Council on Affordable Housing (COAH) and authorized it to assign affordable-housing obligations to each town.
Housing quotas at first were calculated based on such factors as a municipality's employment and growth. Court documents say as many as 60,000 affordable units were constructed between 1985 and 2010.
In the last decade, however, the Supreme Court has twice rejected COAH's proposed methodology for determining towns' affordable-housing obligations, most recently in 2013.
Separately, it also blocked Christie's attempt to disband the agency and transfer its powers to the Department of Community Affairs' commissioner, saying the governor had overstepped his authority.
Christie scolded Chief Justice Stuart Rabner's "activist" opinion, which the governor said "arrogantly bolsters another of the failures he and his colleagues have foisted on New Jersey taxpayers."
Christie's remarks foreshadowed a showdown this year in which Rabner's tenure on the court was in doubt. Ultimately, Christie renominated Rabner, a Democrat. As part of a deal with Senate President Stephen Sweeney (D., Gloucester), Christie also appointed to the court Republican Lee Solomon of Haddonfield.
Christie now has appointed three of the six justices; the court has one vacancy, currently filled by an appellate judge.
Rabner has recused himself from the affordable-housing case, as he had previously.
In its September 2013 decision, the court found the proposed rules - which tied housing obligations to a municipality's projected growth - were inconsistent with the Fair Housing Act and its rulings in Mount Laurel, in part because the rules abandoned fixed quotas.
The court gave COAH five months to adopt new rules; the Christie administration was granted an extension in March. But at its October meeting, the COAH board deadlocked, 3-3, on a motion to adopt the rules, which housing advocates said underestimated the state's affordable-housing needs.
The Fair Share Housing Center filed a lawsuit alleging that the board had missed the November deadline for complying with the Supreme Court order. The suit asked the court to hold that COAH no longer protected municipalities from exclusionary zoning litigation - something the court had said it would consider if the state failed to meet its deadline.
Fair Share also wants the court to coordinate the development of new rules, taking the process out of the administration's hands. The court took similar steps in a 1983 affordable-housing case.
In a brief filed with the court last month, acting state Attorney General John J. Hoffman wrote that COAH's actions "and the public record amply demonstrate that it neither ignored nor willfully violated this court's order; rather, it was simply unable to comply with the order's ultimate requirement."
Neither a spokesman for Christie nor a spokeswoman for Community Affairs Commissioner Richard Constable, who chairs COAH, responded to requests for comment.
Given the state's refusal to take action, the high court may assert itself, said Robert F. Williams, a professor of state constitutional law at Rutgers-Camden.
In the history of both the affordable-housing and public-education-funding litigation, Williams said, the Supreme Court "alternates with either being assertive/activist and then restrained."
As when the court in 2011 forced the state to commit an additional $500 million to poor school districts, "one might say this looks like an instance where it's time for assertiveness," Williams said. "But one never knows."
Greenberg, the lawyer, noted that the court did not ask to be put in this position. In its order granting a motion for oral arguments Jan. 6, the court said "nothing in this order prohibits" either COAH or the Legislature from developing their own solutions.
"It's more than willing to defer to the other branches," Greenberg said, "if they take the action that's properly and constitutionally required."