State Supreme Court Puts Affordable Housing on Docket — for 2015

Colleen O'Dea | December 11, 2014 | Housing
Another slowdown in the struggle to resolve the myriad issues surrounding COAH and establish fair housing in New Jersey

affordable housing
Whatever else it may be, 2014 will not be the year that New Jersey’s affordable-housing stalemate will be resolved. The state Supreme Court has put the issue on its docket — after the holidays.

The latest delay should come as no surprise to anyone who has followed the torturous history of the Council on Affordable Housing.

Six weeks ago, the Fair Share Housing Center filed a motion with the court asking it to turn over to trial courts the task of ensuring that municipalities provide housing for low- and moderate-income residents due to the failure by COAH to adopt rules as ordered by the Supreme Court. The state, in its response last month, opposed that suggestion, saying COAH tried its best and did not “willfully violate this Court’s order.”

Last week, the court issued an order scheduling oral arguments on the motion for January 6. But it held out hope that it might not have to venture yet again into the contentious issue of ensuring towns allow for the construction of homes for those with limited means, suggesting that either COAH or the Legislature could act before that date to solve the problem themselves.

“The Court notes that there is no stay in effect and that nothing in this Order prohibits the Council on Affordable Housing from taking additional steps to carry out its statutory responsibility of adopting Third Round Rules,” the order says. “The State Legislature is free to make changes to the Fair Housing Act regarding the appropriate methodology for determining municipalities’ fair share of affordable housing.”

As of now, there are no additional COAH meetings scheduled. A spokeswoman did not respond to a request for comment.

Legislative action is also uncertain. In its September 2013 order that COAH adopt new rules similar to those that expired 15 years ago, the court similarly noted that the Legislature could change the state law overseeing the affordable-housing process in New Jersey. The Democrats who control both houses have taken no such action. Their last attempt at changing the law, in 2011, brought a veto by Gov. Chris Christie. The governor has made no bones of his disdain for the council, trying unsuccessfully to eliminate COAH more than once.

On October 20, the council deadlocked over new rules that would have dictated how many units municipalities would have to provide to comply with the Supreme Court’s two Mount Laurel rulings, ordering that all communities provide their “fair share” of housing for those of low- or moderate-income. Regulations were supposed to have been updated 15 years ago, but court challenges have invalidated previous attempts by COAH. The Supreme Court’s most recent order had given the council until November 17 to have in place new rules similar to those that expired at the turn of the century.

“There are few, if any, instances of this level of noncompliance with a court order in New Jersey’s modern history,” wrote Fair Share in its brief filed with the court on October 31. “At this point, the Court is left with little choice.”

Fair Share is asking the court to approve a solution it said last March that it would entertain should COAH not meet its deadline. That solution includes removing the protection from lawsuits that municipalities following the state’s housing rules have enjoyed for decades.

This brings back memories of the early post-Mount Laurel days in the 1970s and 1980s in which numerous municipalities were sued by individuals, builders, and the New Jersey Public Advocate in an effort to force the construction of affordable housing. What resulted were judicial orders, often imposing the “builder’s remedy,” which allowed a developer to build usually four market-rate units for every affordable one. A notable example is Bedminster, which was mostly a wealthy community of large lots and estates until it lost a court battle that led to the development of The Hills, a mixed-income and mixed-use development that roughly tripled the township’s population and changed its character.

The New Jersey State League of Municipalities filed its own brief opposing Fair Share’s motion seeking to allow local judges to again determine municipal-housing obligations. It complains that Fair Share is seeking sanctions not against COAH, “but instead against the municipalities that in good faith sought to comply with applicable regulations over the past 14 years.” The league said Fair Share’s request “is an over-reaction to a temporary impediment” and there are “viable alternatives to reinserting the judiciary directly into the affordable housing process and reverting to those conditions that existed prior to the 1985 Fair Housing Act.”

The act was passed as a response to builder’s remedy lawsuits and it created COAH to determine municipal-housing obligations.

Atlantic Highlands and The Four Towns — Bernards, Clinton, Union, and Greenwich Townships — also filed briefs in opposition. The Four Towns complained that “divesting a municipality of immunity would force it to divert its finite resources from compliance to fending off one or more developers vigorously pursuing a builder’s remedy in their efforts to achieve maximum profit.”

But builders see municipalities as the bad guys, balking at construction that would bring more low-income to their communities, according to a brief the New Jersey Builders Association filed supporting Fair Share’s motion.

The builders say that a court ruling “should not be undermined by the addition of terms or conditions that have the effect of granting widespread immunity to municipalities that have sheltered themselves under the protective umbrella of COAH jurisdiction, in many instances for as long as a decade, without actually providing additional affordable housing.” The brief contends that low- and moderate-income households in need of housing are “the ultimate victims of COAH’s inactions” and they have been “victimized because municipalities have been unwilling to approve inclusionary projects, for fear that they might … permit ‘too many’ poor people to move into town.”

The question is back before the state’s highest court because it retained jurisdiction after ordering COAH to act more than a year ago. Fair Share is asking the court to embrace one of the mechanisms it said it would consider.

Specifically, the motion asks the court to create a public process that would include a small number of judges charged with determining municipal obligations for housing working families, lower-income seniors, and people with special needs.

In its brief, Fair Share contends that the council did not adopt the rules because it had nothing to do with writing them; instead, they were drafted by “consultants hired by the Attorney General’s office.” It points out that some COAH members had sought to amend the rules and, when that effort failed, voted not to adopt what had been proposed because they said the rules would not have passed muster with the court.

Housing advocates had argued that the rules proposed last April were flawed. They called for the construction of about 53,000 new units statewide — more than half of which should have been built as long ago as 1987 — and the refurbishing of some 63,000 existing units. COAH officials said they received roughly 3,000 comments on them, though they did not make these public.

Fair Share’s brief recalls the strong language the Supreme Court used in its Mount Laurel II ruling, in which the justices warned that if the Fair Housing Act that created the COAH process “achieves nothing but delay, the judiciary will be forced to resume its appropriate role.”

But the state, in its brief, says the court should not act because the council tried to comply with its order.

“It fell short only at the last hurdle, and only because the members of the Council were unable [to] agree on how to proceed consistent with their views on affordable housing and this Court’s order,” it states, adding that the Legislature “has precisely dictated the membership of a public body to reflect different perspectives.”

The FHA spells out how COAH’s dozens seats should be filled. However, six seats on the council are vacant and have been for several years, since Christie has not nominated a full complement of members.

Kevin Walsh, associate director of Fair Share, noted that the state’s brief merely opposes Fair Share’s proposal and does not specify what else COAH might do to meet the court’s mandate, or even if it has any plans.

“In the midst of a housing affordability crisis made even worse by the slow recovery from Superstorm Sandy, the Christie Administration’s message is to do nothing,” he said. “We need a fair path forward to address New Jersey’s housing shortage, where everyone can participate, with full transparency … We hope that the Supreme Court will recognize the need for a fair and public process to get homes built and our economy moving.”

Michael Cerra, a legislative analyst with the League of Municipalities, noted that the group adopted a resolution at its annual conference last month calling on the Legislature and the governor to come up with a solution.

“Clearly it’s in everyone’s best interests to find an administrative, rather than a judicial, resolution,” he said. “The Legislature needs to craft a legislative solution.”

It’s unclear when or whether lawmakers will try to do that.

On Monday, Republican Sens. Christopher “Kip” Bateman (R-Somerset) and Steven Oroho (R-Sussex) introduced a bill embodying what Christie sought in his vetoes of related bills. It would abolish COAH and sets out parameters for determining when a municipality is in compliance with affordable-housing rules. These include having at least 7.5 percent of the total housing stock price-restricted or adopts an inclusionary zoning ordinance that would essentially require 10 percent of the units in all new housing developments of at least 10 units to be affordable. But the bill has no Democratic co-sponsors.

There hasn’t been any movement on a major Democrat bills dealing with the overall issue of affordable housing in this session.