The State’s affordable housing policy continues to be one of delay. Given that the third round rules should have been in place eight years ago, this has to be viewed as a conscious decision on the part of the State. The second round rules covered affordable housing need through 1999.
In December 2004, after various lawsuits were filed to compel action on third round rules, COAH adopted third round rules. NJBA and other parties promptly challenged the rules as violating constitutional principles for affordable housing as established in the Mt. Laurel decisions.
After considerable delay the case was argued before the Appellate Division in October, 2006 and decided January 25, 2007. The court invalidated large sections of the 2004 COAH rules and gave COAH six months (to July 25, 2007) to adopt new rules. The court also stayed all action on third round petitions pending before COAH.
COAH was dissatisfied with certain aspects of the decision and asked the Supreme Court to grant cert. All other parties then cross filed with the Supreme Court on other provisions in the decision. On June 13, 2007 the Supreme Court denied cert, deciding that it would not take the case and letting the Appellate Division decision stand.
COAH also asked the Appellate Division Court to extend its stay to include municipal “pass through” ordinances that impose affordable housing construction requirements and in lieu fees on all development. The court agreed, despite opposition from the other litigants. We now have the incongruous situation where municipal pass through ordinances that were in place at the time of the January 25, 2007 decision remain in place and enforceable even though they are based on COAH rules that have been invalidated. The NJBA had asked the Supreme Court to vacate or modify the stay, but this request was also denied.
In the meantime, COAH frittered away most of the six months it was given to adopt new rules. It asked the Appellate Division for an extension into early spring 2008. All other litigants, recognizing that the six month deadline would not be met, asked that the court appoint a special master to oversee COAH’s rulemaking. Previously, the court had decided against a special master.
On June 19, 2007 the Appellate Division granted COAH an extension, but only until December 31, 2007, by which time it must have adopted revised rules and have them published in the New Jersey Register. The Court did not appoint a master at this time, but it did leave the door open to such a request in the future.
In May 2007, COAH entered into a contract with consultants to prepare studies of housing and land use conditions in New Jersey and advise it on its methodology and rules. The research is due in August 2007 and a new draft of rules by October 2007. However, this would not allow for a rulemaking process in conformance with the Administrative Procedures Act for adoption of revised rules by December 31, 2007.
But COAH issues were not the only affordable housing action. During this same time frame, the NJBA filed litigation that was intended to compel the NJ Meadowlands Commission (NJMC) and the Sports and Exposition Authority (SEA) to recognize their obligations as state regional planning entities with land use authority to provide for their fair share of affordable housing. Fair Share Housing Center brought a related challenge against NJMC.
Once again, there was considerable delay in getting the litigation scheduled for oral argument, finally occurring on April 24, 2007. The decision was issued one month later. The court found that the NJMC “has a constitutional responsibility to plan and zone for affordable housing….” The decision remanded the matter to the NJMC for action once COAH’s third round rules are adopted.
On the other hand, the court found that the SEA “is not required to plan for affordable housing.” Presumably, any need resulting from employment in SEA authorized projects would be the responsibility of the NJMC, as the SEA is fully within the Meadowlands area. However, the NJBA has filed a motion asking the Supreme Court to grant cert on the issue of SEA responsibility for affordable housing needs resulting from its projects.
On another front, Governor Corzine had promised Homes for New Jersey, a coalition of housing advocates of which NJBA is a member, that he supported a goal of 100,000 units of affordable and workforce housing. His implementation report has yet to be released.
Source: New Jersey Builders Association
