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Contract Suggests State Fudged Dates for New COAH Regulations

Deal with Rutgers consultant was not signed until less than three weeks before court-ordered deadline for adopting housing rules


New Jersey’s contract with a Rutgers University consultant hired to draft proposed affordable- housing rules shows that the state could not have met a court-ordered February 26 deadline for adopting the new regulations.

Released late last month without redactions on the order of Mercer County Supreme Court Judge Mary Jacobson, the contract shows that the state Council on Affordable Housing had little, if any, say over the drafting of rules and calculation of municipal obligations to provide “fair share” housing units for people with low and moderate incomes.

"There really was no involvement by COAH in there," said Adam Gordon, a lawyer with Fair Share Housing Center, which won an Open Public Records Act suit for release of the contract after COAH and Rutgers provided only a heavily redacted version of the 8-page document that included a brief description of the work and its cost -- $295,055.

"It's highly unusual to see the Attorney General's Office essentially managing a rulemaking process, especially for an agency that it supposed to be independent," Gordon said.

COAH is trying for a third time to draft updated rules to satisfy the state Supreme Court's Mount Laurel rulings. COAH's last set of rules expired 15 years ago.

Last September, the state Supreme Court gave COAH five months to adopt new housing rules substantially similar to ones that had been in force through 1999.

The contract with the consultant is dated Jan. 28 and was not signed by all parties until February 6, roughly three weeks before the court deadline. Yet it lists the first date of work as January 13. On February 26, the court-ordered deadline, the contract states that 18 tasks involving the calculating of municipal obligations were due to be completed. It specifies that consultant Robert Burchell would "assist in redrafting remainder of regulations" through April 26.

On February 26, shortly before the expiration of the Supreme Court deadline, the state sought an extension of that deadline, stating in court papers that substantial progress had been made, but that more time was needed to complete the rules. The court approved COAH's request to be agiven until May 1 to propose the regulations.

"It's clear they didn't have any intention of complying with the deadline set by the court ... They didn't get started until four months into their five-month deadline," Gordon said. "Had they said to the court, 'We hired an expert a month ago and we're working on it,' that probably wouldn't have helped their case."

Neither the Attorney General's Office nor COAH officials answered requests for comment.

COAH proposed its new rules on April 30. 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.

The public comment period on expired earlier this month. The council expects to adopt the rules in the fall.

Jacobson ruled late last month that the state had to provide the unredacted contract after Fair Share filed a lawsuit contending it is a public document. She rejected the state's contention that the contract was privileged because as attorney work product it is shielded from the public eye.

"It laid out a calendar with dates ... it really was a rulemaking schedule," Jacobson ruled from the bench. "I didn't see any legal advice in this retention document itself ... This particular rulemaking is of the utmost importance to low income people in New Jersey and it is important this be a public process."

She noted that the state's OPRA law requires that contracts are public documents that typically must be given to a requester without delay. NJ Spotlight had also requested a copy of the contract and it took six weeks for COAH to provide a copy with the same redactions that Fair Share had received.

Gordon said the state provided Fair Share with the contract shortly before the end of the 24-hour deadline Jacobson imposed for its provision.

The contract also gives some insight into how COAH wound up proposing rules that Fair Share contends do not meet the court mandate, Gordon said.

"If they had actually done what was reflected in this contract, we would be in a much better place than we are now," he said.

For instance, Gordon said, the contract does not include any provision for the buildable limit analysis that, in the proposed rules, misplaced more than 10,000 Central Jersey properties in the wrong towns.

" It appears that Dr. Burchell initially performed this contract, the Christie Administration did not like the results, and he was ordered to go back and change his work, all behind closed doors," Gordon charged.

So unhappy with the rules is Fair Share that it has filed a motion asking the Supreme Court to force COAH to adopt rules that mirror the ones used through the 1990s or remove the protection that municipalities that follow the COAH process receive from lawsuits.

Fair Share had also sought certain spreadsheets used in the drafting of the former regulations, but Jacobson denied that request finding that -- as state and Rutgers officials said -- those documents no longer exist. She said she believed the officials when they said they couldn't find the documents, even though they were used to draft the prior rules. Fair Share attorneys said they need the documents to determine how COAH is trying to reduce past affordable housing obligations by more than 8,000 homes.

The advocacy group has another appearance scheduled before Jacobson next month on another OPRA suit. Fair Share contends COAH and several other state agencies violated the law by refusing to provide any correspondence, or only giving redacted emails among the agencies about the publication of the rules. The group alleges that the rules, as published in the New Jersey Register in June, differ from those voted on by COAH in April and will mean a loss of as many as 37,000 unit. Richard Constable, commissioner of the state Department of Community Affairs who serves as COAH's chairman, said the changes were minor and thus permitted.

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