We are months, possibly weeks, possibly days away from two significant Supreme Court rulings that will help drive the state’s affordable housing policy for the foreseeable future.
The first case dates back to the adoption of COAH’s “3rd round” regulations, which were strenuously opposed by the League and most of the communities involved in the COAH process. The key issue before the Court is whether “growth share” is a constitutional mechanism to comply with the Fair Housing Act.
Second, the Court heard the appeal of the lower court ruling overturning the Governor’s Administrative Order abolishing COAH. The League is not directly involved in this second case, but is amicus in a related ruling that prevented the state from seizing the affordable housing trust funds.
This case stemmed from the Governor’s Administrative Order that abolished COAH and reassigned its duties and responsibilities to the Department of Community Affairs. The Fair Share Housing Center challenged the Order, arguing that the Governor does not have the authority under existing law to abolish an agency created by the Legislature. The key issue appears to be COAH’s status as an agency, “…in, but not of…” the Department of Community Affairs.
The League is party in a third case, which is currently before the Appellate Division, regarding the state’s attempts to seize the municipal affordable housing trust funds. This case is still being briefed and arguments could be held in the late spring. The state is currently prohibited from any attempted seizure of the municipal housing trust funds. An August 10 order that restrained the state in its efforts to seize the local trust funds remains in effect.
Regardless of what the Court decides, we should expect affordable housing to return to the
legislative arena soon as the suspension of the 2.5 percent fee on non-residential development, which is intended to assist municipalities to meet their housing obligations, expires on June 30, 2013.
Against the backdrop of an election year, it is impossible to forecast what will happen and when. Our hope is that the Court upholds growth share as a viable mechanism to comply with the Fair Housing Act. Further we hope that the Legislature, Administration and municipalities can then agree and advance a rational housing policy that includes no further financial mandates on our taxpayers and is achievable and sustainable for municipalities
Editorial from New Jersey
Municipalities, Volume 90, Number 4, April 2013