March 31, 2010
RE: SUPREME COURT TO HEAR LEAGUE’S COAH APPEAL
Today, we learned that the New Jersey Supreme Court has granted all the petitions for certification of the October 8, 2010 Appellate Division decision (see October 8, 2010 Dear Mayor Letter) which invalidated COAH’s third round regulations. The League of Municipalities was one of the parties seeking an appeal, as well other municipalities. The League asked the Court to hear all of the petitions so as to get a comprehensive decision that can provide guidance to municipalities. We are obviously pleased with the Court’s decision.
The October decision struck down the burdensome regulations promulgated by the agency, which were opposed by local governments for the inflated projections of growth and reliance on a faulty vacant land analysis. However, in doing so, the Court also invalidated the “growth share” methodology as adopted by the agency.
We were disappointed by the Appellate Division ruling that growth share, as a concept, was invalid. The Appellate Court did invite the Supreme Court, however, to consider the constitutionality of the growth share concept, and the League asked the Supreme Court to do exactly that. Growth share involves providing affordable housing within a community as that community actually grows and new development takes place.
The League will urge the Court to settle on a methodology that is reasonable and rational, which provides for affordable housing and does so in a way consistent with the principles of smart growth and the State Plan and does not compel a financial obligation on our property taxpayers.
If you recall, the Council on Affordable Housing (COAH) proposed this second version of “third round” regulations after the Appellate Division invalidated the first version in 2007. From the outset, however, it was clear that the new regulations were fundamentally flawed, relying upon an inflated determination of vacant land as well as outdated data. As a result, land that was already developed or not suited for development, including some outrageous examples such as highway medians, cemeteries and school grounds, were included in the calculation of projected housing obligations. The statewide determination of need, 115,666 affordable housing units to be provided by 2018, is widely acknowledged as being inflated and unsustainable.
The League, backed by financial pledges of $500 from over 250 municipalities, filed a challenge to these regulations in July 2008. Dozens of other organizations filed suit as well, each challenging various aspects of the regulations. In total, there were 22 different appeals filed. The League submitted its brief and documentation in this case in January 2009, citing the following:
- Fundamental flaws in the COAH methodology and the determination of need;
- The allocation of the projected need is similarly flawed, including the agency’s failure to consider the State Plan, the Highlands Plan and other State planning priorities; and
- Implementation of the regulations would impose overwhelming financial obligations on taxpayers, in violation of the Fair Housing Act.
The 22 appeals were consolidated, and oral argument was heard before the Appellate Division on December 1, 2009. On October 8, 2010 the Appellate Division released its decision in the challenges to the 22 appeals of the June and October 2008 regulations promulgated by the Council on Affordable Housing (COAH). The Court stuck down substantive portions of the regulations, invalided the growth share concept and directed the agency to develop new regulations by March 8, 2011.
The New Jersey Supreme Court previously stayed portions of the Appellate Division decision, including the March 8, 2011 deadline. The Court will now hear appeals of the Appellate Division decision. We will advise when oral argument is scheduled.
Questions on this letter can be directed to Mike Cerra at email@example.com or at 609-695-3481 x120.
Very truly yours,
William G. Dressel, Jr.