Dear Mayor:

I. COMMENT PERIOD ON "3RD ROUND REGULATIONS END"

The 60-day comment period for the newly proposed COAH "3rd round" regulations has now ended. The League submitted comments that are available on our website. Included in our comments was that COAH carefully consider the impact of the provision that certificates of occupancy issued after January 1, 2004 count towards the "growth share" obligation will have on many communities in the State. Since many communities are only now seeing developments come online that were approved years ago, we note that there is no way such municipalities could have anticipated a "growth share" obligation, particularly for commercial development.

We also asked COAH to consider what the impact of this provision will be in municipalities that host universities, hospitals and other non-profit organizations.

The League objected to the new requirement that municipalities that will require COAH certified municipalities to receive "initial plan endorsement." We are concerned that this provision undermines the legislative intent of both the Fair Housing Act and the State Planning Act, both of which clearly state that participation with COAH or the State Planning Commission is voluntary. The League also considers it unwise to make "initial plan endorsement" process a requirement since it is an untested process. As of today, only one municipality has even begun the process.

We did reiterate, however, our support for the underlying "growth share" concept, which is a more rational approach than previous COAH methodology.

COAH is in now in the process of reviewing submitted comments. We anticipate that the Council will move 3rd round regulations in the next couple of months. The League is holding a program on the newly proposed regulations at our annual conference on Thursday, November 18, 10:45 AM, Room 303 of the Atlantic City Convention Center. Once the Conference is over, we likely schedule additional workshops and seminars on the new regulations as well.

II. LITIGATION REGARDING "COAH EXTENDED SUBSTANTIVE CERTIFICATION"

On October 13, COAH passed emergency regulations to assure the continued COAH protections for municipalities with "extended certification." They were effective as of October 14.

As you may recall, the League provided the lead on behalf of the impacted municipalities in response to the attempts by the New Jersey Builders' Association (NJBA) and the Coalition for Affordable Housing and the Environment (CAHE) to strip away the COAH certification from these communities and expose them to builder's remedy litigation.

Recently, an Appellate Court decision supported the League's position that COAH has the authority to promulgate "extended certification" regulations. The Court, however, struck down a portion of the existing regulations regarding public notice and public participation, and ordered COAH to correct the regulations in 60-days.
COAH's actions on October 13 should satisfy the Court's requirement. Under the emergency regulations, municipalities will have 60 days from the effective date of the regulations to resubmit for extended certification. The municipalities with extended certification should also receive notification and information on how to submit the necessary documentation from COAH.

The emergency regulations will be in effect until December 12. COAH plans to readopt the regulations after public comment at its December meeting. That should keep the immunity in place.

If your municipality has received "extended substantive certification" from COAH, you should speak to your attorney(s) to submit the necessary paperwork to COAH. We are informed by COAH that the 111 municipalities impacted by this issue will receive correspondence from COAH on the issue immediately. It is our understanding that information was sent via FedEx to the Mayors yesterday and to the municipal clerks via regular mail. Information is also available on COAH's website (www.nj.gov/dca/coah).

Additionally, the NJBA is appealing the Appellate Court's decision to the State Supreme Court. The League has responded to the Court in opposition to the NJBA petition.

If you have any questions on this issue, please contact Mike Cerra at (609) 695-3481 x20.