Advocacy Group Pursues COAH and the Case of the Missing Documents
State, Rutgers both claim they can't find the files used as the basis for latest rules regarding affordable-housing obligations
New Jersey court dockets over the latest proposed affordable-housing rules just got fatter, since an advocacy group is seeking to force the Christie administration to explain why the regulations approved by the Council on Affordable Housing were changed prior to their publication.
The new lawsuit by Fair Share Housing Center alleging that COAH and several state departments violated the state's Open Public Records Act was filed as the state and Rutgers University filed court papers defending another OPRA violation. In their briefs, the state and Rutgers say they did not turn over documents regarding the recent recalculation of municipal housing obligations sought by Fair Share Housing Center because they could not find the files.
"The more the Christie Administration refuses to explain how it came up with the new fair-housing rules it proposed, the more suspect the rules look," said Adam Gordon, a Fair Share attorney. "How could the only copies of this critical information have been destroyed? How can any community leader, mayor, or homebuilder have trust in a process in which the Christie Administration and its contractors now admit that they have lost or destroyed the information used to calculate each municipality's fair share?"
Fair Share had sought the formulas used by Rutgers Professor Robert Burchell, who served as a consultant to the state to recalculate municipal housing obligations for 1987-1999 as part of the creation of the total amount of housing units affordable to those of low- and moderate-incomes that each municipality would have to meet under recently proposed rules. Housing obligations are calculated to meet the state Supreme Court's Mount Laurel rulings that require each community to provide its fair share of low-cost housing.
Under the COAH process, each time new rules are adopted, the prior obligations that a municipality has not met typically had been carried forward. But in proposing new rules -- on order of the state Supreme Court -- the council used figures for 1987-1999 that were different from, and usually lower than, those originally calculated in the 1980s, according to Fair Share. Statewide, communities were to have built nearly 86,000 affordable units during the 1987-1999 period, data provided by Fair Share shows. The newly proposed rules specify that number at 77,500. Fair Share says the manner in which some communities' prior obligations were reduced, while others' were increased, appears "random."
In its response filed July 14 to a suit Fair Share submitted in late June alleging COAH and Rutgers violated the state's Open Public Records Act by not providing documents showing how those numbers were reduced by 8,000, the state said, "No records exist." Similarly, the brief supporting Rutgers and Burchell states, "the University searched for and does not have in its possession the additional documentation that plaintiff seeks . . . Although plaintiff purports to be skeptical that the University does not possess the requested documents, plaintiff's claim is based on nothing more than unfounded skepticism and, thus, baseless."
In a statement filed as part of Rutgers' brief, Burchell described an exhaustive search of multiple locations for the documents Fair Share requested. He referred to a complex explanation of the changes made to the 1987-1999 rules in the drafting of new rules in 2004 -- rules that the state courts invalidated, but said the "specific programming is unavailable and could not be located." He also said that he performed consulting work relating to the earlier projections but that there have been computer changes in the interim and he has not seen any of the documents in more than 10 years and he doesn't know when those earlier documents "ceased to be stored in the University's systems."
Rutgers and the Department of Community Affairs did not respond to requests for comment on the court filings. Gordon said Fair Share is considering "how to respond to the unprecedented situation of the State claiming it has lost the basic information used to support its regulations." He said that rules in New Jersey are typically ruled invalid if an agency cannot provide a factual basis for them.
To Fair Share's allegation of a second OPRA violation because the state had redacted virtually all of the details of its contract with Burchell, the state defended the redactions, saying, "The redacted portions of the retention letter contain the mental impressions and opinions of counsel" and thus were proper.
Rutgers' response agrees with the state's and adds another exemption, claiming, "the redactions obscure specific details of a research project from the agreement" and as such is exempt by law "as pedagogical scholarly and/or academic research records of a public higher education institution."
The redacted parts of the contract, a copy of which NJ Spotlight also received, follow language indicating they would outline "the scope of work" and "research and deliverable schedule."
As it was reviewing the responses to its June OPRA suit, Fair Share was filing a new suit, contending COAH, the Department of Community Affairs, the state Division of Law and the state Office of Administrative Law all violated OPRA by either refusing to provide any correspondence or only providing redacted emails among the agencies regarding the publication of the proposed new rules.
The rules that were published in the New Jersey Register differ from those proposed by COAH. DCA Commissioner Richard Constable has said the changes made were minor. But Fair Share maintains they will mean the loss of as many as 37,000 affordable units.
"The powers of the COAH board were overtaken by unidentified persons who are not statutorily authorized to take action in place of the independent board," Fair Share's complaint charges. "FSHC and the public at large are entitled to know who made the change to the rules."
"The Administration admits that it has something to hide, and the public deserves to know what it is hiding," Gordon said. "To make major changes to laws behind closed doors after a public meeting and public vote is unprecedented. The public has a right to know who ordered the changes, and how, and yet the Christie Administration refuses to say what happened."
This is the third legal action Fair Share has filed since COAH proposed the new rules, which call for fewer than 31,000 new affordable units to be built statewide by 2023, at the end of April. The center filed a motion with the Supreme Court last month asking it to force COAH to comply with the court's September 2013 order that it promulgate regulations similar to those used through 1999. Fair Share contends the proposed rules do not meet the court's order.