October 12, 2012
RE: COAH 3rd Round Rules Challenge Scheduled for NJ Supreme Court Oral Argument
The New Jersey State Supreme Court will hear oral argument on November 7 in A-90/91/92/93/94 I/M/O Adoption of N.J.A.C. 5:96 and 5:97 by the New Jersey Council on Affordable Housing (067126).
If you recall, the Council on Affordable Housing (COAH) adopted its “third round” regulations for the determination of municipal affordable housing obligations in 2008. 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that the new regulations were fundamentally flawed, relying upon an inflated determination of vacant land as well as outdated data.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 was 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 to the Appellate Division 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. Please see the League’s October 8 Dear Mayor letter for more on this decision: http://www.njslom.org/letters/ml100810-coah.html
To summarize, the Court invalidated COAH’s third round regulations, striking the burdensome regulations promulgated by the agency. However, in doing so, the Court also invalidated the “growth share” methodology as adopted by the agency. 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.
In this matter, the League is represented by Edward J. Buzak, Esq.
Other COAH related litigation
This litigation is not the only COAH related issue before the Court. If you recall, the Appellate Division granted a motion brought by the Fair Share Housing Center and struck down the Governor’s Administrative Reorganization Plan which abolished COAH. Please see the League’s March 8, 2012 Dear Mayor letter (http://www.njslom.org/letters/2012-0308-COAH.html) for more. This case, A-127-11 In re Plan for the Abolition of the Council on Affordable Housing (070426) is now before the State Supreme Court but has not been scheduled for oral argument.
Also, the League recently filed its response brief in the challenges brought forth by the League and the Fair Share Housing Center regarding the State’s efforts to seize the municipal housing trust fund dollars. Currently, the August 10 Appellate Court order which stopped the State’s seizure of the trust funds is still in effect. Please see the League’s August 29 Dear Mayor letter (http://www.njslom.org/letters/2012-0829-AH-Trust-Funds.html) for more.
Questions on this letter can be directed to Mike Cerra at firstname.lastname@example.org or at 609-695-3481 x120.
Very truly yours,
William G. Dressel, Jr.