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Appeals Panel’s Top Judge Scolds COAH for Stalling on New Municipal Quotas

The state filed that extension request at 4:09 p.m. last Wednesday, which was the deadline by which COAH was to have written new rules. In its request, COAH stated it would formally propose regulations by May 1 so they could be published in the June 2 issue of the New Jersey Register, a requirement for all state rules.

Fuentes countered that since the Supreme Court upheld the Appellate Division's order of October 2010, COAH had five months from then to put forth regulations and was well past that deadline.

Attorney Edward Buzak, representing the New Jersey State League of Municipalities, said it "would have been nice" if COAH had proposed regulations by the deadline, to which Fuentes agreed, "That would have been nice."

Since that did not happen, but COAH has suggested an alternative schedule, Buzak suggested the appeals panel "hold them to it, but don't appoint a third party to usurp the agency that was created to eliminate what precisely now my adversaries in this case propose."

Walters said that COAH staff has been reviewing and updating data.

"Big deal," Walsh said. "They have done nothing for five months, except possibly peruse the Census website."

Walsh contended that allowing COAH to go ahead and propose rules on May 1 and let that process continue could mean new rules won't be in place until 2020.

"I am a pretty optimistic person, but ... I don't think they would be very good regulations that would be very true to Mount Laurel," Walsh said.

In supporting his call for a special master, Walsh said the methodology already exists to set new housing obligations using the rules used twice before to calculate the housing quotas. State law requires that those quotas be updated periodically. Walsh said a special master could calculate these updated quotas in 30 to 60 days.

In arguing for a special master, Kantowitz said low- and moderate-income residents have been treated poorly for too long.

"The protected class demands better and doesn't deserve to be treated as a doormat the way COAH has treated it as a doormat for 14 years," he said. "It's inexplicable that this agency can hold up an entire field of jurisprudence by its willful inaction."

Barring that, Walsh suggested the court remove the protection from lawsuits that COAH has provided to those towns that have agreed to abide by its rules. That would open municipalities up to a potential "builder's remedy."

Under the "builder's remedy" sanctioned by the Mount Laurel II ruling, a developer can ask a judge to set aside the zoning of a municipality that is not meeting its affordable-housing obligation and get approval to build development in which 20 percent of the units are set aside for low- and moderate income residents.

Walsh said municipalities should be allowed several months to apply to the court for approval of plans to provide affordable housing and be deemed immune from lawsuits.

"Our concern is that going case by case, you end up taking more time and the effort -- which is what I think it is -- to undermine the Mount Laurel doctrine succeeds" because of the amount of time it takes to set housing quotas and get units built, Walsh said.

While seeming to rule out the proposal for a special master, Fuentes asked questions about throwing the issue of affordable housing into the courts.

And he floated another option: Order COAH and each of its members to meet soon or be held in contempt of a court order.

It's still unclear what action the appeals panel might take. But Fuentes promised to take some action quickly.

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