concurring in part and dissenting in part.
I agree with the Court’s disposition of the three certified questions, including its determination that Toll Brothers was entitled to a builder’s remedy. In my view, however, the specific remedy granted by the lower courts to Toll Brothers was far too generous. It did not sufficiently address the housing needs of low income households, particularly those earning less than forty percent of median income. The remedy granted Toll Brothers also was too generous in requiring that only fifteen percent of the housing units to be built by Toll Brothers be affordable by low and moderate income households. To the extent that those deficiencies in the builder’s remedy granted to Toll Brothers are attributable to regulations promulgated by the Council on Affordable Housing (COAH) on which the trial court relied, I would conclude that those regulations, irrespective of their validity, are not applicable to builder’s remedy litigation.
This is the first time since our decision in Hills Development Co. v. Township of Bernards, 103 N.J. 1, 510 A.2d 621 (1986), that the Court is presented with a record that implicates the use of the builder’s remedy to vindicate the constitutional principles underlying our decision in Southern Burlington County N.A.A.C.P. v. Township of Mount Laurel, 92 N.J. 158, 456 A.2d 390 (1983) (Mount Laurel IT)- Accordingly, I deem it appropriate to address collateral concerns about the builder’s remedy advanced by some *568of the parties participating as amicus curiae in this litigation. Those concerns include COAH’s methodology for calculating the regional fair share of affordable housing that in my view misallocates the burden of constructing that housing, with the result that builder’s remedy lawsuits too often are filed in communities with slow rates of growth rather than in communities that have planned for and are experiencing rapid development. Another concern is over-reliance on builder’s remedy litigation, one remedy for which would be a limited authorization of fee shifting in favor of successful non-profit plaintiffs that file and litigate inclusionary housing suits against non-compliant municipalities.22
Before addressing issues that focus on improving the effectiveness of or diminishing reliance on the builder’s remedy, an important misconception should be confronted. Some critics of the Mount Laurel doctrine and the builder’s remedy claim that they are the primary cause of “sprawl,” overdevelopment, and the loss of open space throughout the state. Reliable statistics contradict that criticism. Since 1983, when Mount Laurel II was decided, approximately 480,000 residential dwelling units have been constructed of which about 26,000 units, or 5.4 percent, constituted units affordable to low and moderate income households. In addition, during the years 1995 to 2000, approximately sixty million square feet of office and retail space has been built throughout the State. David N. Kinsey, Reaffirm Mount Laurel, 165 N.J.L.J. 619 (Aug. 13, 2001). Those statistics suggest that if overdevelopment has occurred, the source of that overdevelop*569ment is market-priced housing and commercial construction, not affordable housing.
I
A
The amici briefs of the Rutgers Environmental Law Clinic and the Fair Share Housing Center argue forcefully that one of the most serious flaws in the implementation of the Mount Laurel doctrine, either through the builder’s remedy or through COAH’s substantive certification process, is that the “affordable housing” units constructed are not affordable by the very poor, particularly those households below forty percent of median income.23 Amici’s argument is persuasive and disturbing.
COAH’s affordability regulations do not require that any housing constructed in inclusionary developments be affordable by households earning less than forty percent of median income. N.J.A.C. 5:92-14.2, entitled “Range of affordability for purchased housing,” requires municipalities seeking substantive certification to ensure that the average price of low and moderate income housing units within an inclusionary development be affordable by *570households earning 57.5 percent of median income. That regulation also requires the following distribution of prices for every twenty low and moderate income units:
Proposed Pricing Stratification
Low
1 at 40 through 42.5 percent
3 at 42.6 through 47.5 percent
6 at 47.6 through 50 percent
Moderate
1 at 50.1 through 57.5 percent
1 at 57.6 through 64.5 percent
1 at 64.6 through 68.5 percent
1 at 68.6 through 72.5 percent
2 at 72.6 through 77.5 percent
4 at 77.6 through 80 percent
The summary of Public Comments and Agency Responses relating to the adoption of that affordability regulation reveals that COAH believed that it was not “realistic” to require low income housing to be affordable to households earning less than forty percent of median income:
COMMENT: N.J.A.C. 5:92-14.2 pertaining to range of affordability for purchased housing, does not provide sufficient opportunities for low income units.
RESPONSE: The proposed rule is intended to provide affordable housing to the widest possible spectrum of low and moderate income households. However, the rale recognizes the problems low income households have in qualifying for mortgages, raising a downpayment and paying for closing costs. Due to these difficulties, the Council did not think it was realistic to require purchased housing to be priced so as to be affordable to those households earning less than Ifi percent of the median income. However, it should be noted that the Council has recognized the need of very low income households by requiring a rental housing component of municipalities and by allowing municipalities to accommodate their housing obligations through alternative living arrangements that are a more realistic economic alternative to very low income households.
[18 N.J.R. 2443 (emphasis added).]
COAH’s affordability regulation will determine the prices of the affordable housing units to be built by Toll Brothers pursuant to the builder’s remedy awarded to it. The Law Division’s July 30, *5711997, Order Establishing Builder's Remedy Standards mandated that “West Windsor’s Ordinances relating to controls on Affordable Units shall be amended to conform to the standards set forth in the [COAH regulations].”
COAH’s affordability regulation, and the Law Division’s assumption that that regulation was binding on it for purposes of establishing the affordability of the low and moderate income housing units to be built by Toll brothers, appear to be inconsistent with a fundamental premise of the Mount Laurel doctrine. That premise is that a portion of the housing built pursuant to Mount Laurel be affordable by low income households. This Court emphasized that principle explicitly in Mount Laurel II.
In determining fair- share, the court should decide the proportion between low and moderate income housing unless there are substantial reasons not to do so. The provisions and devices needed to produce moderate income housing may fall short of those needed for lower. Since there are two fairly distinct lower income housing needs, an effort must be made to meet both.
The proportion between the two is, inevitably, a matter for expert testimony. It will depend, as does the fair share itself, on a complex mix of factors. We note, without comment, the trial court’s use in Carteret, for this purpose, of the actual proportion between the low and moderate income population of the county. The point here is that it is an issue that should be addressed in passing on the adequacy of land use regulations (and revisions thereof) as well as builder’s remedies.
[92 N.J. at 256-57, 456 A.2d 390 (citation omitted) (emphasis added).]
That Mount Laurel II contemplated that affordable housing would include units affordable by low income households is incontestable. Moreover, the Fair Housing Act does not distinguish between the needs of low and moderate income households, nor does it authorize exclusion of households below forty percent of median income. See N.J.S.A. 52:27D-304e to 304d (defining “low income housing” as housing affordable by households with gross income equal to 50% or less of median income of same size household within region, and defining “moderate income housing” as housing affordable by households with gross income between 50% and 80% of median income of same size households within region); N.J.S.A 52:27D-310 (requiring municipality’s housing element to address municipality’s fair share of low and moderate income housing); N.J.S.A 52:27D-311 (addressing techniques for *572providing low and moderate income housing); N.J.S.A. 52:27D-314 (conditioning substantive certification by COAH on finding that municipality’s fair share plan is consistent with achievement of low and moderate income housing needs of region).
In setting forth the analytical basis for the constitutional obligation imposed by Mount Laurel II, Chief Justice Wilentz emphasized that the urban poor were intended to be among the primary beneficiaries of the Mount Laurel holding:
The basis for the constitutional obligation is simple: the State controls the use of land, all of the land. In exercising that control it cannot favor rich over poor. It cannot legislatively set aside dilapidated housing in urban ghettos for the poor and decent housing elsewhere for everyone else. The government that controls this land represents everyone. While the State may not have the ability to eliminate poverty, it cannot use that condition as the basis for imposing further disadvantages. And the same applies to the municipality, to which this control over land has been constitutionally delegated.
The clarity of the constitutional obligation is seen most simply by imagining what this state could be like were this claim never to be recognized and enforced: poor people forever zoned out of substantial areas of the state, not because housing could not be built for them but because they are not wanted; poor people forced to live in urban slums forever not because suburbia, developing rural areas, fully developed residential sections, seashore resorts, and other attractive locations could not accommodate them, but simply because they are not wanted. It is a vision not only at variance with the requirement that the zoning power be used for the general welfare but with all concepts of fundamental fairness and decency that underpin many constitutional obligations.
[92 N.J. at 209-10, 456 A.2d 390.]
In the context of the purposes underlying the Mount Laurel doctrine, as well as the provisions of the Fair Housing Act cited above, the validity of COAH’s regulation that excludes from the range of affordability of low and moderate housing units those households earning less than forty percent of median income is highly questionable. Although we have acknowledged that “[t]his principle of judicial deference to agency action is particularly well-suited to our review of administrative regulations adopted by COAH to implement the Fair Housing Act,” we also emphasized that that deference was not intended to “dilute COAH’s duty to adopt regulatory methods that are consistent with the statutory *573goals.” In re Petition for Substantive Certification Filed by the Township of Warren, 132 N.J. 1, 27-28, 622 A.2d 1257 (1993).
However, the validity of COAH’s “range of affordability” regulation is not directly or indirectly implicated by this appeal. That regulation applies only to low and moderate income housing units proposed to be constructed by a municipality petitioning COAH for substantive certification pursuant to the Fair Housing Act. However, the Law Division undoubtedly assumed that, in implementing the builder’s remedy for Toll Brothers, it should be guided by COAH’s range of affordability regulation. In my view that assumption, although understandable, is unwarranted.
The source of the Law Division’s assumption that it should follow COAH’s regulations in implementing the Toll Brothers builder’s remedy is this Court’s opinion in Hills, supra, 103 N.J. 1, 510 A.2d 621. In the course of that opinion, we emphasized the desirability of harmonizing judicial decisions involving the Mount Laurel doctrine with COAH’s regulatory determinations:
This statutory scheme addresses the mam needs delineated in our prior decisions on this matter, namely, the consistency on a statewide basis of the determination of regional need, fair share, and the adequacy of the municipal measures. Furthermore, the decisions and actions by the Council will follow the contours of the SDRP (when completed), explicitly designed for this purpose, among others. Revisions, adjustments, fine tuning — all of the techniques available to an administrative agency — can be implemented on a statewide basis as experience teaches the Council what works and what does not. The risk that discordant development might result if Mount Laurel cases continue to be decided by the courts is minimized by the considerations noted above, which lead to the conclusion that most municipalities will use the Council’s procedures. Furthermore, the judiciary, assuming the statutory plan functions reasonably effectively, will be responsive to the actions of the Council and conform its decisions in this field to the Council’s various determinations.
[Id. at 37, 510 A.2d 621.]
We also stated:
This Court will do its proper share in this cooperative effort. While the Legislature has left a continuing role under the Act for the judiciary in Mount Laurel matters, any such proceedings before a court should conform wherever possible to the decisions, criteria, and guidelines of the Council. We do not believe the Legislature wanted lower income housing opportunities to develop in two different directions at the same time, contrary to sound comprehensive planning. In that connection, courts will, pursuant to section 16b, transfer to the Council any *574Mount Laurel action hereafter commenced except where the Act clearly calls for retention (such as the petition for a declaratory judgment referred to in Section 13).
[Id. at 63, 510 A.2d 621.]
Notwithstanding the clear preference we expressed in Hills, supra, that judicially imposed remedies be harmonized with COAH’s regulatory determinations, that preference is not unlimited nor should it be extended beyond its logical limits. The principle underlying the use of the builder’s remedy is that the profit realized by the successful builder in constructing market-price housing will permit the builder to subsidize the affordable housing units to be constructed. We made that point expressly in Mount Laurel II:
The balance of the project will presumably include middle and upper income housing. Economically integrated housing may be better for all concerned in various ways. Furthermore, the middle and upper income units may be necessary to render the project profitable. If builder’s remedies cannot be profitable, the incentive for builders to enforce Mount Laurel is lost.
[92 N.J. at 279 n. 37, 456 A.2d 390 (emphasis added).]
Unlike the process of substantive certification in which a municipality submits a housing element for COAH’s review, the grant of a builder’s remedy by a trial court is a more dynamic and more flexible proceeding. Variables include the total number of market-priced units to be permitted, the percentage of affordable housing units to be required, the price ranges of the affordable housing units, the timetable for construction of both affordable and market-price units, and numerous other factors. Trial courts implementing builder’s remedies have at their disposal various mechanisms for encouraging the successful builder-litigant to provide affordable housing for households whose median incomes fall at the lower end of, as well as below, COAH’s range of affordability. In view of this Court’s specific requirement in Mount Laurel II that affordable housing units include units affordable to low income families, including the urban poor, it would be a bitter irony if courts implementing the builder’s remedy — a judicially created enforcement mechanism — should fail to assure that a significant number of the affordable housing units are within the *575reach of low-income households, including households whose incomes are below forty percent of median income.
We are informed by amici that regulations adopted by the Department of Community Affairs under the Balanced Housing Program, N.J.A.C. 5:43 — 1.4(c)(1), and by the Housing and Mortgage Finance Agency that administers the Federal Low Income Housing Tax Credit Qualified Allocation Plan, N.J.A.C. 5:80-33.13, do not permit the grant of subsidies under those programs to developers of inelusionary developments that have benefited from zoning created by a density bonus. As inexplicable as those regulatory exclusions may be, they do not exhaust the available funding mechanisms for low income housing. The use of development fees pursuant to municipal ordinances approved by COAH conceivably could provide available funding for such housing. Additional funding sources are cited in the Fair Share Housing Center amicus brief. The parties participating in builder’s remedy litigation may be familiar with other funding sources. The point is that the COAH regulation on range of affordability, which I consider to be of doubtful validity, even as applied to the substantive certification process, should not be binding on trial courts that implement builder’s remedies. Such a limitation on the trial court’s discretion is utterly incompatible with the principles underlying Mount Laurel II.
B
A similar analysis is applicable to the trial court’s determination that of the 1,165 units to be constructed by Toll Brothers, approximately fifteen percent or 175 units must be affordable to low and moderate income households. The July 30,1997, order of the Law Division expressly provides as follows: “Toll shall provide a set-aside of fifteen percent (15%) of the total units as rental, family Affordable Units.”
That requirement of a fifteen percent set-aside is consistent with the requirements of COAH’s regulations pertaining to inclu-sionary developments, particularly N.J.A.C. 5:92-14.4 entitled *576“Rental Housing.” That regulation provides in part: ‘Within zones designated for rental inclusionary developments, the Council shall presumptively require a 15 percent maximum set-aside and a minimum gross density of 7.8 units per acre.” N.J.AC. 5:92-14.4(c). Other COAH regulations also favor a fifteen percent set-aside. N.J.AC. 5:93-5.6, entitled “Zoning for inclusionary development,” provides that COAH generally will favor the construction of single-family detached units as part of an inelusionary site at a “gross density of four units per acre with a 15 percent set-aside.”
The COAH preference for a fifteen percent set aside for affordable housing contrasts sharply with this Court’s express preference in Mount Laurel II for a minimum set-aside of twenty percent of affordable housing. In Mount Laurel II we held that a developer that succeeds in Mount Laurel litigation and “proposes a project providing a substantial amount of lower income housing,” ordinarily should be entitled to a builder’s remedy. Mount Laurel II, supra, 92 N.J. at 279, 456 A.2d 390. In a footnote the Court elaborated by explaining what constituted a project providing a substantial amount of lower income housing:
What is “substantial” in a particular case will be for the trial court to decide. The court should consider such factors as the size of the plaintiff’s proposed project, the percentage of the project to be devoted to lower income housing (20 percent appears to us to be a reasonable minimum), what proportion of the defendant municipality’s fair share allocation would be provided by the project, and the extent to which the remaining housing in the project can be categorized as “least cost.”
[92 N.J. at 279 n. 37, 456 A.2d 390 (emphasis added).]
As was the ease with COAH’s “range of affordability” regulation, COAH’s fifteen percent set aside preference should not, in my view, be binding on trial courts supervising builder’s remedy litigation. Because the relief to be afforded in such litigation is intended to provide the maximum number of affordable housing units that are feasible, consistent with the market-rate housing units to be constructed by the successful builder-litigant, a court should not be restricted by the COAH preference for fifteen percent set-asides. Putting to one side the validity of the COAH *577regulations, those regulations are intended expressly to apply to municipal petitions for substantive certification. That process, as noted above, is drastically different from the more flexible process implicated in builder’s remedy litigation. The same considerations that suggest the irrelevance of COAH’s range of affordability regulation to builder’s remedy lawsuits apply with equal force to COAH’s express preference for only a fifteen percent set-aside for affordable housing units in inclusionary developments.
C
Another significant issue raised by amicus Rutgers Environmental Law Clinic concerns the methodology used by COAH to calculate regional and municipal fair share of low and moderate income housing. The existing COAH formula is substantially patterned on the trial court’s opinion in AMG Realty Co. v. Warren Township, 207 N.J.Super. 388, 504 A.2d 692 (Law Div. 1984). We summarized that methodology in Twp. of Warren, supra, 132 N.J. at 17-19, 622 A.2d 1257. In its simplest terms, COAH considers four factors in allocating prospective regional need: (a) annual employment change within a municipality as a percentage of regional employment change; (b) employment in a municipality as a percentage of regional employment; (c) municipal land and growth areas as a percentage of growth areas in the region; and (d) municipal aggregate per capita income as a percentage of regional per capita income. In short, fifty percent of the weight for allocating a municipality’s prospective regional need is based on that municipality’s proportionate share of the region’s employment and the remaining fifty percent is based on the municipality’s physical and financial capacity to accommodate affordable housing. Advocates of affordable housing argue that that formula is unnecessarily complex and, more importantly, fails to take into account the growth anticipated to occur in the subject municipality in the ensuing years. Advocates of a “growth share” approach to the calculation of municipal and regional need for affordable housing note that the Fair Housing Act, N.J.S.A. *57852:27D-310, imposes an obligation on municipalities seeking substantive certification to include detailed information that would inform COAH about the projected growth and development in the municipality. That statutory provision requires the housing element to include, for example, the following: “A projection of the municipality’s housing stock, including the probable future construction of low and moderate income housing, for the next ten years, taking into account, but not necessarily limited to, construction permits issued, approvals of applications for development and probable residential development of lands.” N.J.S.A. 52:27D-310(b).
COAH has not yet promulgated its regional and municipal fan-share requirements applicable to the “third round,” and the Court is informed that a proposal incorporating the growth share concept has been submitted to COAH for its consideration. In its simplest terms, that proposal contemplates that a municipality’s growth share would constitute its proportionate share of actual residential and nonresidential development in the municipality over the next six years. The residential growth share would constitute one-fifth of the total of new residential construction, analogous to the twenty percent set-aside referred to in Mount Laurel II. The nonresidential growth share would be calculated by converting actual nonresidential development into affordable units based on a formula that equates one affordable housing unit with a specific number of square feet of nonresidential construction. See John M. Payne, Remedies for Affordable Housing: From Fair Share to Growth Share, Land Use Law and Zoning Digest (Jun. 1997 at 3-9).
The obvious virtue of a fair share calculation based on actual growth is that the municipalities best able to accommodate additional affordable housing units would bear the greatest burden of constructing those units, whereas municipalities not contemplating significant growth would bear a reduced burden. The reallocation of municipal fair share that could result from a change in COAH’s methodology appropriately could redirect significant portions of *579the responsibility for affordable housing to those municipalities in the state experiencing the greatest increase in residential and commercial development.
D
Amicus Rutgers Environmental Law Clinic also asserts that the Court should supplement the Mount Laurel doctrine by authorizing an award of counsel fees to nonprofit plaintiffs that institute and prevail in exclusionary housing litigation. Amicus observes that although in the early stages of Mount Laurel litigation numerous nonprofit entities filed suits and participated in exclusionary housing litigation, the trend in recent years largely has been in the direction of litigation instituted by builders seeking a builder’s remedy. Amicus notes that the disadvantage of builder’s remedy litigation is that affordable housing units resulting from such litigation constitute no more than twenty percent, and more likely fifteen percent, of the total number of units permitted to be constructed by the court. In comparison, in suits instituted by nonprofit plaintiffs all of the housing units constructed would be affordable to low and moderate income households, thereby eliminating the need for the construction of market price units to subsidize the affordable housing units.
Coincidentally, our Court recently considered at its June 11, 2002, administrative conference the report of the Supreme Court Civil Practice Committee that included a proposal entitled “Fee Shifting in Public Litigation.” The Court was informed that the majority of the Civil Practice Committee did not favor a fee shifting proposal as a matter of policy. A minority report submitted by members of the subcommittee on Fee Shifting in Public Interest Litigation disagreed with the majority’s conclusion. That report noted that plaintiffs who prevail in advancing rights asserted under the United States Constitution often can recover counsel fees, in both state and federal court, pursuant to 42 U.S.C. § 1988. The minority report also noted that numerous statutes and court rules authorize fee shifting and that “the omission of state consti*580tutional claims from these fee provisions is incongruous.” The proposed fee shifting rule advocated by the minority report would authorize a court, in its discretion, to award reasonable counsel fees and reasonable litigation expenses to a claimant who successfully has asserted a right under the New Jersey Constitution. That counsel fee award, however, would be limited to a reasonable hourly rate not to exceed $150 and compensation for paralegals and support staff not to exceed $50. No enhancement of a fee award would be permitted on the basis of the novelty or complexity of the claim. See 2002 Report of the Supreme Court Civil Practice Committee, 167 N.J.L.J. 689 app. D (Feb. 25, 2002).
At its June 11, 2002 conference the Court administratively decided not to accept the majority report of the Civil Practice Committee and to remand the matter to the full committee with instructions to reconsider, refine, and resubmit the proposed fee shifting rule recommended by the minority report to the Court for its reconsideration. The Civil Practice Committee also was instructed to hold such hearings and to permit the participation of such interested parties as may be appropriate.
Although the ultimate result of the Court’s June 11, 2002, administrative determination remains unresolved, in my view the Court’s preliminary action reflects an appreciation of the value that a fee shifting rule could add to litigation designed to enforce rights guaranteed by the State Constitution. Mount Laurel litigation is a prominent example of the kind of litigation that would benefit from a fee shifting proposal. Mount Laurel II never intended that the builder’s remedy would be the only means of vindicating the constitutional mandate for the construction of affordable housing. As this Court made clear in Hills, supra, the builder’s remedy was developed not for the benefit of builders but to advance the constitutional interest in affordable housing. “We concluded that if it were possible for builders to profit from lower income housing, they would pursue it, and further concluded that such pursuit was likely to increase compliance with Mount Laurel.” 103 N.J. at 54, 510 A.2d 621. Moreover, in response to the *581enactment of the Fair Housing Act that we sustained in Hills, the Court expressed its expectation that successful builder’s remedy litigation in the future rarely would occur: “If the Council conscientiously performs its duties, including determining regional need and evaluating whether the proposed adjustments and ordinances provide the requisite fair share opportunity, a successful Mount Laurel lawsuit should be a rarity.” 103 N.J. at 35, 510 A.2d 621.
In my view, the Court’s ultimate approval of a rule permitting fee shifting for the benefit of plaintiffs who successfully institute and conclude litigation asserting rights under the State Constitution, and especially rights under the Mount Laurel doctrine, would be a highly constructive initiative that would diminish future reliance on builder’s remedy litigation and encourage the participation of nonprofit plaintiffs in litigation designed to vindicate the constitutional principles underlying Mount Laurel II.
II
The Mount Laurel doctrine that recognized a constitutional predicate for affordable housing, and the builder’s remedy established as a mechanism to vindicate that constitutional right, are principles that first were recognized by this Court. In that most basic sense, their implementation is our ultimate responsibility.
Not for any lack of will or commitment on our part, the reality is that no appeal presenting a certifiable or constitutional question concerning the builder’s remedy has been presented to this Court in over a decade. Although anecdotal reports about problems in the application of the builder’s remedy have been widespread, this appeal affords the Court its first opportunity in over ten years to initiate a course correction. No one can predict when the next such occasion will arise. In our only major Mount Laurel appeal during the nineties, the Court unanimously invalidated a COAH regulation permitting a municipality to establish a residential preference for fifty percent of that community’s regional fair share of affordable housing, concluding that the regulation was inconsistent with both the Fair Housing Act and the regional focus of the *582Mount Laurel doctrine. Township of Warren, supra, 132 N.J. at 28-36, 622 A.2d 1257.
Although not among the issues certified, the fundamental flaw that this record reveals concerning the manner in which trial courts are implementing the builder’s remedy requires our attention. Contrary to Mount Laurel II, and unauthorized by the Fair Housing Act, a COAH regulation on range of affordability that excludes from affordable housing households below forty percent of median income is being relied on by trial courts in builder’s remedy litigation on the mistaken assumption that application of the regulation is mandatory. Similarly, trial courts are applying COAH’s fifteen percent set-aside preference in the belief that it is binding, rather than observing this Court’s expectation that at least a twenty percent affordable housing set-side would be an appropriate condition of a builder’s remedy. Mount Laurel II, supra, 92 N.J. at 279 n. 37, 456 A.2d 390.
The Court should address those critical questions in this appeal. The understandable assumption by trial courts is that our opinion in Hills, supra, advocating harmonization of judicial decrees and COAH regulatory determinations, 103 N.J. at 37, 63, 510 A.2d 621, requires application of COAH’s regulations to builder’s remedy suits. In my view, the Hills Court never would have contemplated or intended that the Mount Laurel doctrine or the builder’s remedy could be undermined by a COAH regulation that excluded our poorest families from occupying affordable housing units the construction of which the Mount Laurel II Court anticipated would be for their primary benefit.
Ill
For the reasons stated, I would remand this matter to the Law Division to revisit the builder’s remedy awarded to Toll Brothers. Specifically, the court should reconsider its determination that West Windsor’s affordable housing ordinance must mirror the COAH range of affordability regulation. In my view, the court on remand should be authorized to redetermine the scope of the *583builder’s remedy and to impose its own requirements concerning the range of affordability of low- and moderate-income housing units to be constructed by Toll Brothers. The requirements imposed by the court clearly should include low-income housing units affordable to households with incomes below forty percent of median income. Moreover, the court should redetermine the number of affordable housing units to more closely reflect the twenty percent minimum set-aside that this Court contemplated in Mount Laurel II.
In all other respects I join in the Court’s disposition of this appeal.
For affirmance — Chief Justice PORITZ, and Justices COLEMAN, LONG, VERNIERO and LaVECCHIA — 5.
For affirmance and remandment — Justices STEIN and ZAZZALI — 2.
Our precedents fully support consideration by the Court, when appropriate, of issues not directly raised by the parties. See In the Matter of the Registrant C.A., 146 N.J. 71, 80, 679 A.2d 1153 (1996) ("We also address issues, not directly raised in this appeal, that relate to the validity of the Registrant Risk Assessment Scale that the Court sua sponte requested the parties and amici curiae to address.”); State v. Gerald, 113 N.J. 40, 69, 549 A.2d 792 (1988) ("We turn now to a question that has been neither raised nor argued by the parties, but one that nevertheless demands consideration because of its importance to a just resolution of this appeal.”).
According to the Fair Housing Act, NJ.S.A. 52:27D-304, low income and moderate income housing means housing that will be occupied by low and moderate income families based on the "median gross household income for households of the same size within the housing region in which the housing is located.” COAH regulation N.J.A.C. 5:43-1.5 explains that the median gross income is established "by geographic region and household size using income figures and family size adjustment methodology published periodically by the ... U.S. Department of Housing and Urban Development [HUD] and approved for use by the Council on Affordable Housing.” Based on a January 31, 2002, memorandum from HUD discussing "Estimated Median Family Incomes for FY 2002,” the estimated "median family income for the United States for FY 2002 is $54,400.” Apparently in reliance on the HUD data, COAH has promulgated regional income limits as of April 3, 2002. The regional income limits vary among twenty-one counties that have been divided into six different regions throughout New Jersey. Based on a two-person household the statewide median income is $57,188 and reflects the average of the median income of the six regions.