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NJ, Rutgers Sued Over Refusal to Release Details of Affordable-Housing Formula

Fair Share seeks details of how new quotas were determined, gets heavily redacted document

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The Fair Share Housing Center is again suing the Christie administration and Rutgers University for failing to provide documents related to the calculation of proposed new affordable-housing obligations that it requested under the New Jersey Open Public Records Act.

One of the requested documents is the contract between the state and Rutgers professor Robert Burchell, who drafted the proposed revised housing rules and calculations of new municipal housing quotas adopted by the state Council on Affordable Housing two months ago.

That same document also was requested by NJ Spotlight, which received it on Tuesday, more than six weeks after it was originally requested.

The 8-page contract was substantially redacted; virtually everything that pertains to the specific work done by Burchell that would not be considered boilerplate language was blacked out.

The only information specific to the work that was not redacted were Burchell's name, the $295,055 cost of the contract and this description of the work: "to serve as an expert regarding affordable housing and, and, in anticipation of and defense of litigation, to assist the Division of Law in the delivery of legal advice concerning the development of revised regulations ... to provide expert consulting services in accordance with the following scope of work." The specific scope description was redacted.

In addition to the full text of the contract, Fair Share is seeking access to the spreadsheet Burchell used to calculate the housing obligations, that, according to a press release from the center, "the state is either hiding or has lost that eliminates 8,000 homes from the statewide housing need."

"Rutgers, COAH and the Attorney General's office are hiding documents that the public is entitled to see," said Kevin Walsh, the FSHC attorney who filed the lawsuit in Superior Court in Mercer County. "When the state spends our money, it shouldn't hide the receipt. The assertion that the public cannot see how our tax dollars are spent and the basis for the Christie Administration's decisions should concern anyone who cares about good government."

In the case of NJ Spotlight's May 9 request for the contract, COAH supplied the redacted document on June 24. COAH stated it needed two extensions, even though OPRA specifically lists contracts as one of several kinds of documents to which "immediate access ordinarily shall be granted."

The law requires that those documents to which immediate access is not required be provided within seven business days "provided that the record is currently available and not in storage or archived."

No reason was given for the initial extension, except that "COAH requires an extension." The second extension was needed "due to staff time constraints," according to a letter from the council.

The letter that accompanied the redacted contract provided to NJ Spotlight states only that the document includes "redactions to protect attorney work product." The custodian did not respond to a request for further explanation.

Adam Gordon, a Fair Share attorney, called the reason given for the redactions "one of the most extreme claims of privilege under OPRA we've ever seen." He said that the last time COAH drafted rules, in 2008, Fair Share asked for similar documents and received them without any redactions.

A spokeswoman for COAH referred questions for comment to the state Attorney General's office, which could not be reached after typical office hours. A spokesman for Rutgers declined to comment about the lawsuit.

The contract omits information about the work Burchell was to do and the schedule he was to follow, even though the report has since been delivered to COAH and given initial approval. Still, the contract provides a couple of interesting bits of information.

While the state Supreme Court ordered COAH last September to draft new rules within five months, the contract is dated Jan. 28 and was not signed by all parties until February 6, roughly three weeks before the court deadline.

And while the council is the body charged with drafting affordable-housing rules, the contract is between Burchell and the state Department of Law and Public Safety, not COAH. At least two council members said they did not even see the regulations until a day or two before the April 30 vote.

"They (the redactions) obscure whether the state deliberately extended the timeline beyond the February 26 deadline the court established," Gordon said, adding that is likely "given that they inexplicably did not even enter into this contract until a month before that deadline."

On Feb. 26, shortly before the expiration of the Supreme Court deadline, Richard Constable, the commissioner of the state Department of Community Affairs and chairman of COAH, gave a written statement to the court in support of the need for an extension of time to write the rules in which he described the work done to that point. He wrote that "substantial progress has been made in terms of the review and analysis of the most current data sources and the crafting of the various components of the proposed methodology" but more work was needed.

The council met April 30 for the first time in almost a year to approve rules to meet the Supreme Court's Mount Laurel rulings, which require municipalities to provide their "fair share" of housing affordable to the low- and moderate-income.

This is COAH's third try at passing new regulations, with the first two overturned by the courts. These new rules are to replace ones that expired 15 years ago.

The rules cover 224 pages and include a complex methodology for determining individual municipalities' housing obligations. They call for less than 31,000 new affordable units to be built by 2023 statewide, far fewer than advocates say are needed.

Last week, Fair Share filed a motion in Supreme Court asking that body to force COAH to promulgate regulations mirroring those used through 1999 or remove the protection from lawsuits that municipalities that follow COAH's rules now enjoy.

The center contends in its court papers that the proposed regulations are "fundamentally dissimilar from the methodology that the Court ordered COAH to utilize" and are a "thinly veiled attempt to undermine the Fair Housing Act of 1985 ... and the Constitutional prohibition against exclusionary zoning."

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