January 6, 2009
LEAGUE FILES BRIEF CHALLENGING COAH REGULATIONS
Yesterday, January 5, the League of Municipalities filed, with the Appellate Division of the Superior Court of New Jersey, its brief appealing the regulations adopted by the New Jersey Council on Affordable Housing last year. The League’s actions are unprecedented. For over twenty years, the League worked with COAH to educate and assist its members in complying with COAH’s regulations. However, the regulations promulgated in 2008 violate the clear language and intent of the Fair Housing Act and are not consistent with the January 2007 Appellate Division decision which invalidated portions of COAH’s previous methodology. To date, 251 municipalities have pledged towards the League’s challenge.
In announcing the submission of this brief, League President and Hope Township Mayor Timothy McDonough stated, “The League of Municipalities supports the provision of affordable housing, the State Plan and environmental conservation. And we believe none of these are mutually exclusive. We ask the Court to invalidate these regulations, and we call on the Legislature to work with the League, developers and housing advocates in developing a fair and reasonable methodology that will promote affordable housing hand-in-hand with sustainable development policies. ”
The League’s legal argument revolves around three points. One, the League challenges the underlying support for the “growth share methodology” and the numbers produced by it. While the League does not discard “growth share” as a concept, all of the underlying assumptions that essentially doubled the projected growth share obligations of municipalities are flawed and inaccurate, thereby violating the constitutional and statutory mandates which govern the operation of COAH.
Two, the League challenges the methodology utilized to allocate the growth share obligations to municipalities. These inflated projections are allocated without adequate regard to the State Plan, “smart growth” policies and existing conservation and open space efforts promoted by the State. In essence, the State is advocating two contradictory policies, and demanding local governments honor both. Further, these projections are based upon false and inaccurate vacant land analyses and speculative residential and non-residential growth patterns.
The irony here is that the State Plan and conservation efforts have been put in place so as not to repeat the mistakes of the past. The purpose of the State Plan is to promote development in our centers and areas of the State which have adequate infrastructure, and to end the patterns of sprawl. By relying on past growth patterns, the COAH methodology becomes a self-fulfilling prophesy and will perpetuate sprawl.
Third, the League demonstrates that the implementation of the COAH regulations will result in overwhelming financial burdens on property taxpayers in violation of the Fair Housing Act. COAH’s regulations will impose a significant financial obligation upon the local taxpayer. The nonpartisan Office of Legislative Services (OLS) suggests in response to a legislative inquiry that there is an approximate $2 billion annual shortfall in available funding as compared with the obligation established under the COAH third round regulations.
League Assistant General Counsel Edward J. Buzak, of The Buzak Law Group, represents the League and offered the following comment:
“COAH’s regulations are unsustainable and fatally flawed. Affordable housing can be provided in a manner consistent with sound planning strategies, the State Plan and other State planning initiatives. COAH’s regulations, if implemented, will drive up the costs of compliance and those additional costs will ultimately be borne by taxpayers. We can do better.”
League Executive Director Bill Dressel noted the following:
“We take this action in support of achieving a sustainable affordable housing policy and in defense of our property taxpayers. We hope that the end result will be a methodology that encourages the participation of local governments, accommodates and promotes the development of affordable housing and does so in a manner consistent with local and State planning efforts.”
The League’s brief is online and can be accessed at: http://www.njslom.org/COAH-Brief-and-Appendix.pdf
Since the brief is lengthy, we are also providing an Executive Summary at: http://www.njslom.org/COAH-Executive-Summary-NJLM-Challenge.pdf
Contact: Mike Cerra, Senior Legislative Analyst
(609) 695-3481 x120
Edward J. Buzak, Esq., League Assistant General Counsel