October 1, 2013
RE: Supreme Court Affordable Housing Decision
As indicated in our September 27 Dear Mayor alert, the New Jersey Supreme Court recently ruled, in a 3-2 decision, that the "growth share" regulations adopted by the Council on Affordable Housing (COAH) were "ultra vires" and inconsistent with the Fair Housing Act (FHA.) Specifically, the Court determined that because growth share is not based upon region specific data and instead based on ratios formulated from statewide projected housing need, it is not consistent with the FHA. The Court agreed with the Appellate Division's determination that new regulations consistent with its opinion should be adopted within five months.
Portions of the Court decision read as an open invitation to the Legislature to develop an alternate remedy to reflect current circumstances. The decision acknowledges that the judicial remedy imposed in "Mount Laurel II" is not a "straight jacket" to the State Legislature to develop other methods to satisfy the constitutional obligation. Thus, the Legislature could authorize a growth share approach, or another alternate approach, and establish the appropriate parameters.
The "3rd round" regulations were adopted by COAH in 2008, despite objections from just about every major stakeholder, including the League. The League undertook a challenge of the regulations, arguing that the allocated housing obligations were unachievable, unrealistic and would impose a financial obligation on taxpayers. Rather than specifically addressing these claims or attempting to surgically identify those regulations it found to be invalid, the Court found that growth share played such an integral role in the round three regulations that COAH needed to revamp the entire body of round three regulations consistent with its decision.
Going forward, COAH is to promulgate new 3rd round obligations within five months consistent with past fair share methodologies to allocate fair share. The Court's decision could prompt the Legislature to reexamine the means and methods to implement the FHA. The League continues to call on the Legislature and Administration to work with local officials to craft a legislative solution that implements a housing policy that is rational, workable and does not perpetuate financial obligations on to taxpayers. While it is too soon to tell if the Legislature and Administration can agree on a legislative solution in wake of the Court's decision, obviously we will be reaching out to determine how to best partner and forward our goals.
The decision in In the Matter of the Adoption of N.J.A.C 5:96 and 5:97 by the Council on Affordable Housing is online at: http://www.judiciary.state.nj.us/opinions/supreme/A9010COAH_TBF.pdf
Questions can be directed to either Mike Cerra at (609) 695-3481 x120 or firstname.lastname@example.org or Ed Purcell Esq. at (609) 695-3481 x 137 or email@example.com.
Very truly yours,
Janice S. Mironov, President, William G. Dressel, Jr.
New Jersey State League of Municipalities, Executive Director
Mayor, East Windsor Township