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

Acknowledging “the political turmoil that has plagued voluntary compliance with the constitutional goal of advancing the delivery of affordable housing” the decision hints that a return to the old methodology should prompt lawmakers to act: “To the extent that this record reveals that most interested parties do not wish for that method to last for long, the remedy we impose today will incentivize prompt legislative attention to this subject.”

Lesniak said he does not expect the Legislature to consider a new housing bill before the election in November because it is unlikely the houses will be in session.

And LaVecchia wrote that any new housing laws that may be enacted will still have to meet constitutional muster: “Although the Legislature may consider enacting an alternative form of remedy for the promotion of affordable housing in the housing regions of this state . . . enforcement of the constitutional obligation is still a matter that may be brought to the courts.”

The court’s opinion is likely to discourage lawmakers from trying to write better housing laws, wrote Justice Helen Hoens in a dissent.

“In the end, although my colleagues in the majority invite the Legislature to chart a new path, their conclusion that the Third Round Rules adopted by COAH are inconsistent with the dictates of the FHA, and their further directive that strict adherence to the methodology of the earlier rounds is the only permissible remedy, leave the Legislature with no guidance concerning what alternate statutory approach might comply with the majority’s interpretation of the Constitution,” Hoens wrote. “That lack of guidance, perhaps unintentionally, will greatly diminish the likelihood that the Legislature will attempt a future change of course.”

Hoens disagreed with the majority and stated that she believes COAH’s growth-share approach is consistent both with the FHA and the court’s Mount Laurel II decision.

Justice Anne Patterson joined in Hoens’ dissent. Justice Barry Albin and Judge Ariel Rodriguez, who is filling a vacancy on the court, joined LaVecchia’s majority opinion. Chief Justice Stuart Rabner and Judge Mary Catherine Cuff, also temporarily serving on the court, recused themselves.

With COAH and the question of citing affordable housing still controversial nearly 40 years after the court’s first Mount Laurel ruling, the case had drawn widespread interest from a host of groups on both sides of the issue. Among those who filed briefs were: The New Jersey State League of Municipalities, a number of individual towns, the New Jersey Builders Association, the New Jersey Chapter of the National Association of Industrial and Office Properties, the International Council of Shopping Centers, New Jersey Future, the Housing and Community Development Network of New Jersey, the American Civil Liberties Union, Catholic Charities, the New Jersey State Conference of the National Association for the Advancement of Colored People, and Latino Action Network.

"I'm happy that we are able to build more affordable homes for the poor and people with disabilities," Mike McNeil, Housing Chair of the NJ NAACP said. "I've experienced housing discrimination myself which is why I got into this fight, so this victory is especially meaningful for me. The Court has responded to a broad coalition of partners committed to fair housing.”

Calling COAH’s last rules “unachievable and irrational,” Janice Mironov, mayor of East Windsor and president of the League of Municipalities, said she hopes the decision will lead to a change that will mean a better system for housing determinations.

“Today, the court’s decision underscores the need and presents the opportunity for the administration, the Legislature and municipal officials to partner and craft a reasonable, fair and achievable housing policy,“ she said.

When new, solid rules are in place, municipal officials can begin to do the necessary planning for affordable housing that they have been hesitant to undertake during more than a decade of flux, said Charles Latini, president of the New Jersey chapter of the American Planning Association.

“This decision will allow New Jersey municipalities to move ahead with the critical mission of planning for and ensuring the construction of needed affordable homes," Latini said. "It removes the confusion and uncertainty that has plagued COAH for 14 years.”

But Assemblyman Scott Rumana (R-Passaic) predicted the ruling will have the opposite effect.

“The Supreme Court has once again issued an irrational ruling with respect to housing development throughout our state,” he said. “I am disappointed by the court's decision, which will place municipalities in legal limbo . . . By ruling against the ‘growth-share’ concept, the court has once again turned over the destinies of every municipality to the bureaucrats of the Council on Affordable Housing, exposing municipalities to evermore and massive high-density residential over-development.”

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