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

Council has five months to come up with new quotas for low- and moderate-income housing

Thursday’s New Jersey Supreme Court ruling that struck down the state’s most recent affordable housing regulations also sent the Council on Affordable Housing back to the drawing board. The decision gives the council five months to come up with new quotas to ensure that towns and cities provide their fair share of low- and moderate-income housing.

The question now is whether the Christie administration will ignore the ruling or work with the Legislature to come up with new regulations.

But at least one state legislator who has tried to rewrite the COAH process is skeptical that will happen and said he is preparing to again push legislation to provide a system that would better meet the court’s mandate.

“It’s likely, quite frankly, that a COAH run by Gov. Christie is not going to come up with something that is constitutional,” said Sen. Raymond Lesniak (D-Union) and sponsor of a bill in the last legislative session that would have revamped the state’s affordable housing laws and abolished the council.

“He is going to have to accept the court ruling” and work with the Legislature on a bill he is willing to sign “or the court is going to make its own rules.”

A spokesman for Christie had no comment on the long-awaited ruling, which affirmed a nearly three-year old appellate decision invalidating COAH’s third round rules, and a spokeswoman for COAH did not return a request for comment.

“I think we have to go back to the drawing board and take a look at the legislation I sponsored that the governor vetoed and use that as a starting point to get something into law that abides by the constitution,” Lesniak said, adding he would work to improve his bill, which Christie sent back to the Legislature in January 2011 with a 49-page conditional veto message in which he called the COAH system “ineffective and burdensome.”

That bill originally had set up a growth-share system in which one of every 10 new housing units in larger developments would have to be designated for low- and moderate-income residents. But when amended and merged with an Assembly version, it required that 10 percent of all housing be affordable.

The court’s 3-2 decision states repeatedly that the old rules for determining housing obligation are not a “straitjacket” and the Legislature may write new laws to determine how affordable housing obligations are apportioned throughout municipalities. Still, that’s not what Fair Share Housing Center Associate Director Kevin Walsh is anticipating will happen.

“The Legislature gave it its best shot and Christie rejected it,” said Walsh, who argued the case before the court. “I don’t anticipate the Legislature doing anything, given its disagreement with Christie.”

Assembly Speaker Sheila Oliver (D-Essex} said the next move is Christie’s: “The Assembly expects the Christie administration to adhere to the state’s constitution and put forth a new affordable housing plan. Once it does, the Assembly will take a close look at it and decide how to proceed.”

Instead, Walsh sees COAH adopting new housing obligations using the methodology it had been using in the 1980s and ‘90s “at most” in five months. (The Supreme Court gave COAH five months to use its former methodology to calculate new quotas for all towns.) He thinks municipalities will submit housing plans that incorporate those quotas to the state “within the next nine months to a year.”

The invalidated COAH growth-share rules -- which had based municipal affordable housing requirements on future growth considering statewide need -- predate Christie’s tenure. Still, the governor is no fan of COAH and Walsh cited him in a statement issued following the decision, stating, "The Christie Administration has done everything it can to delay and block Mount Laurel from promoting development of affordable housing in New Jersey. We now have a final decision and look forward to more homes in communities throughout the state."

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