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August 19, 2009

Re:  Affordable Housing     

  1. Update on Commercial Development Fee (2.5%) Moratorium and Refunds
  2. COAH grants extension to Highlands municipalities
  3. Regional Development Planning and Coordination Program Guidelines
  4. COAH Litigation Update

Dear Mayor:

The purpose of this letter is to update you on several developments related to the Council on Affordable Housing (COAH) and affordable housing in general.

  1. Update on Commercial Development Fee (2.5%) Moratorium and Refunds

The League has fielded numerous questions on the implementation of the moratorium of the 2.5% fee. We requested that COAH issue additional guidance, and the agency has now posted, on their website, a “NRDF Suspension FAQ” which answers many of these questions.

While the FAQ is self-evident, we would like to point out a few items of particular interest.   The most asked question has been if a town had previously enacted a non-residential development fee by ordinance prior to the enactment of PL 2008, c. 46 (aka “A-500”) how much of a refund is the developer entitled to.  Question 6 of the FAQ states clearly that a developers are, “…only entitled to a refund of the difference between the originally required fee (probably 2%) and the 2.5% fee (if paid).  Similarly, fees paid prior to July 17, 2008 are not eligible to be refunded.”

The FAQ also states that developers are NOT entitled to interest. 

The FAQ also states that every town that refunds monies to a developer should then request to COAH reimbursement by March 30, 2010 for those funds.  Failure to do so will result in the full housing obligation generated by those particular developments. The FAQ goes on to state that, “If the municipality requests reimbursement from the State by March 30, 2010, but insufficient funds are available, the non-residential development would be excluded from the actual growth share obligation.”  The FAQ goes on to note that further guidance will be provided at a later date regarding the availability of other State and federal subsidies and the accompanying housing obligation.

COAH’s FAQ is available at:

For more information, please see our Dear Mayor letter of July 27

  1. COAH grants extension to Highlands municipalities

At its meeting this past week, COAH extended the deadline for municipalities in the Highlands Region that previously requested an extension for submission of a petition for COAH substantive certification, from December 8, 2009 to June 8, 2010. 

Towns that can take advantage of this extension were notified by letter (sent only by e-mail) that same day.  If you did not receive this email but believe you should have, please contact COAH immediately.

  1. Regional Development Planning and Coordination Program Guidelines

PL 2008, c. 46 (“A-500”) provides “regional planning entities” the option to address affordable housing based on regional planning considerations.  The law provides such entities with the ability to permit municipalities within their jurisdiction (New Jersey Meadowlands Commission, Pinelands Commission, Fort Monmouth Economic Revitalization Planning Authority, Highlands Water Protection and Planning Council and the Casino Reinvestment Development Authority in conjunction with the Atlantic County Planning Board) to transfer up to 50 percent of their affordable housing obligations to other municipalities within their jurisdiction to further sound planning.

COAH draft guidelines for such Regional Development Planning and Coordination Program (“RAHDPP”) were posted recently on its website for comment. The item was originally an agenda item for the Council’s meeting this past week, but it has now been postponed until the September meeting for consideration.  While the comment period has passed, if your municipality is part of these regional planning entities, we urge you to review these guidelines ( and to offer any comments necessary to the agency. 

The League submitted comments, expressing our concern that the majority of the municipalities impacted by these “guidelines” have not had the opportunity to review and comment. Our letter is online at:

  1. COAH Litigation Update

We have also received numerous inquiries as to the status of the League’s challenge to the COAH 3rd round regulations.    The League, backed by the pledges of over 250 municipalities, filed a challenge to the COAH 3rd round regulation, and filed its brief and other documentation, earlier this year.

The next step is for an oral argument hearing to be scheduled by the Appellate Division, which has not yet happened.    Obviously, such a hearing will not happen until the fall, and a decision from the Court is not likely until after the election. 

The League’s brief is online at: and a summary of the brief is online at:

Likewise, the League’s response to COAH is online at: and a summary of the response brief is online at:

Questions on this letter can be directed to Mike Cerra at or at (609) 695-3481 x120.

Very truly yours,

William G. Dressel, Jr.
Executive Director




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