The latest attempt to introduce affordable housing rules has apparently failed. On October 20th, COAH’s 6 board members ended in a stalemate when trying to pass the Revised Third Round Rules. 3 members, including COAH Chairman, Richard Constable (Commissioner, NJ Dept. of Community Affairs), Anthony Marchetta (Exec. Dir., NJ Housing & Mortgage Finance Agency, and Suzanne Waters (Pres., NJ League of Municipalities) voted to pass the rules in an effort to comply with NJ Supreme Court order of publishing the rules by November 17th. In opposition were John Winterstella (former Mayor of Manasquan, Independent Government Administration Professional), Ted King (a Fairlawn resident, representing the general public), and Tim Doherty (Director of Project Freedom, an organization representing special needs housing developers). The opposing board members wanted to petition the court for more time to review the 3,000 comments they received during the public review period. They felt that the court would be understanding and proposed tabling the decision for 60 days.
Neither proposal was passed leaving everyone wondering “What happens next?” Unless COAH calls an emergency session and reaches a consensus, the board will surely be in violation of the court order.
Not everyone was upset with the outcome. Jeff Tittle, director of the New Jersey Sierra Club, believed the rules as proposed favored development of “open space”. Adam Gordon, attorney for the Fair Share Housing Center, was also happy to see the rules fail stating they are “not only unconstitutional, they are irrational.”
Michael Cerra of the NJ League of Municipalities echoes the sentiments of Eye on Riverdale, “Even if and when regulations are adopted, everyone knows it is going to court and there is going to be another prolonged battle”. “The more this gets prolonged, the less direction municipalities have. It should be clear … plenty of municipalities are willing to act to build housing.” (NJspotlight.com, Oct 21, 2014)
The next few weeks are certainly going to be tense at COAH headquarters. EOR will be keeping a close watch on the proceedings. There are 2 aspects of the rules that Affordable Housing Advocates objected to that could have a profound effect on small municipalities. The first was that the proposed rules would continue to provide protection against Builder’s Remedy lawsuits for municipalities that participate in the process. If you recall, this is a lawsuit that would enable the courts to force a town to change their zoning laws to allow a developers to build large complexes on the basis that the town has not met their affordable housing quota. Second, the last version of the Third Round Rules increased the percentage of affordable units that must be incorporated into new developments from 10% to 20%, the Revised Third Round rules puts this percentage back to 10%. Affordable housing advocates want to remove all protections for municipalities and want the percentage of affordable housing in new developments to be at 20%. The worst case scenario for small towns would be a split; the removal of all protections and an affordable unit percentage of 10%. This would be a home run for commercial developers (not to be confused with affordable housing developers) and potential disaster for small towns.
For a complete, non-partisan, summary of the vote and its implications, please see COAH’S ATTEMPT TO ADOPT NEW RULES FOR AFFORDABLE HOUSING GOES NOWHERE FAST (NJSpotlight.com, Oct 21, 2014). Much of the content of this article and the above photo is credited to NJSpotlight.com.