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NJ Supreme Court Overturns Affordable Housing Rules, Puts COAH on Tight Deadline

It was Fair Share’s second win in the Supreme Court in the past few months: In July, the court overturned Christie’s reorganization plan that had abolished the council and further stated that the governor does not have the power to reorganize any independent state agency.

Yet that decision has not yet brought life to the moribund council, which has not met since the ruling. Christie had filed a reorganization plan disbanding COAH and transferring its duties to the state Department of Community Affairs, where it is considered and “in but not of” agency, in June 2011.

Although the Appellate Division of Superior Court rejected that reorganization in March 2012, COAH has met only twice in recent years: once in 2011 and then last May to start the process of taking as much as $164 million in unspent affordable housing trust funds from municipalities.

While the DCA website links include a COAH Staff Contacts page, there is no information about the council or any schedule of meetings. Walsh said he knows of no meetings scheduled. The appointments website of the governor’s office lists nine vacancies, of 12 spots, on the council and two of the three seated members have legislatively designated positions.

But in writing for the majority, Justice Jaynee LaVecchia agreed with the appellate division’s “quick deadline” for calculating new housing obligations based on the methods the council had used in the past because few units have been built during the past five years since the issue has been before the courts. According to the the ruling, as many as 60,000 new low- and moderate-income units were built in the state between 1985 and 2010 under COAH’s old methodology.

“Rules to govern the third round cannot wait further while time is lost during legislative deliberations on a new affordable-housing approach,” the opinion states. “A remedy must be put in place to eliminate the limbo in which municipalities, New Jersey citizens, developers, and affordable-housing interest groups have lived for too long.”

New housing obligations are some 14 years overdue. COAH initially was to have adopted municipal quotas when its so-called “second-round” numbers expired in 1999, but the council delayed until 2004. It finally adopted the new growth-share rules in 2008, but Fair Share Housing challenged those almost immediately and the appellate division twice overturned them. The Supreme Court agreed to take the case more than two years ago and heard oral arguments last November.

The court found that the growth-share methodology did not follow the state’s Fair Housing Act, and its own landmark Mount Laurel rulings, because it calculated low- and moderate-income housing needs on a statewide, rather than regional, basis and predicated future housing on future growth -- meaning a community without growth would not need to provide any new affordable housing beyond its prior obligations.

That was very different than in the first two “rounds,” covering 1987-1999, when the council set housing quotas for each community so that it would provide its “fair share” of regional needs based on economic projections and its capacity to accommodate new units. COAH did not have the authority to stray so far from that original model, codified in the FHA.

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