October 8, 2010
LEAGUE STATEMENT ON APPELLATE DECISION REGARDING COAH
Today, the Appellate Division released its decision in the challenges to the 22 appeals of the June and October 2008 regulations promulgated by the Council on Affordable Housing (COAH). The Court stuck down substantive portions of the regulations, and directed the agency to develop new regulations within five months.
The ruling strikes down the burdensome regulations promulgated by the agency, which were opposed by local governments for the inflated projections of growth and reliance on a faulty vacant land analysis. In its decision, the Court invalidated the “growth share” methodology as adopted by the agency.
We agree with the Court’s decision to strike down these regulations and to direct the agency to develop valid regulations.
We are disappointed, however, that the Court found growth share as a concept to be invalid. The Appellate Court did invite the Supreme Court, however, to consider the constitutionality of the growth share concept, which would be most appropriate.
League Executive Director Bill Dressel noted the following:
“This decision poses more questions than answers, and underscores the clear and undeniable need for legislative reform to the Fair Housing Act. The process for COAH has become unwieldy, bureaucratic and has resulted in the expenditure of millions of taxpayers dollars focused on the process. S-1 is a step in the right direction, and the Legislature should prioritize and pass legislative reform immediately.”
The Council on Affordable Housing (COAH) proposed this second version of “third round” regulations after the Appellate Division invalidated the first version in 2007. 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that the new regulations were fundamentally flawed, relying upon an inflated determination of vacant land as well as outdated data.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, including some outrageous examples such as highway medians, cemeteries and school grounds, were 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 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. Since then, legislation to abolish COAH and make other reforms to the Fair Housing Act has passed the State Senate (S-1, passed on June 10, 2010 by a vote of 28-3) and the General Assembly is expected to consider and act on housing reform this fall.
Contact: Bill Dressel, Executive Director
(609) 695-3481 x122 or (609) 915-9072 (cell)
Edward J. Buzak, Esq.